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Preview: Jottings By An Employer's Lawyer

Jottings By An Employer's Lawyer

"Some are building monuments, Others, jotting down notes." Bob Dylan

Updated: 2018-03-06T05:40:20.242-06:00


After 42 Years, It's Nice to Know That I Might Be Qualified for Something


In this morning's mail box ...Michael, BCG Attorney Search noticed that the following job might suit your qualifications and experience. We are pleased to provide you with the latest jobs from your preferred geographic location and practice area as and when they become available.If you are interested in applying for this position, please fill out our sign-up form here: Our expert recruiters will get in touch with you to evaluate your career options and advise you accordingly. This account will also allow you to view new jobs that match your search settings, submit your resume, and take advantage of a host of other useful features.Please be informed that BCG Attorney Search is extremely selective and works only with the best attorneys and the most exclusive law firms in the world. For more information, please contact BCG Attorney Search by email or phone, Monday through Friday, 9:00 am to 5:00 pm, PST. Title: Entry-level Employment Law Attorney with labor experienceLocation:Texas - HoustonPractice Area:EmploymentHouston office of our client seeks entry-level employment law attorney with 1 year of experience. The candidate must have excellent legal research and writing skills. Should be presently licensed to practice law in Texas. Knowledge of general princip...Click here If we are currently working with you as one of our candidates and you are interested in any of these new positions, please contact your recruiter immediately so that we can discuss these openings with you. [...]

The Concept of Fallow Ground and Other Musings


More than one year has passed since my last post, and the two or three years before were little more productive. Still for some reason, hopefully more noble than ego, I have chosen not to kill off this spot on the internet.

Like the biblical admonition and agricultural practice of letting farm land rest for a period of time so it might be more fertile, the hope is this prolonged period away from posting will allow me to return to it with an even more helpful perspective on the world of work, from my vantage point as one who has represented employers for an extended period of time.

It also marks a time of change in my professional life. After 42 years as a labor and employment lawyer, I am transitioning to a more reduced role in the active practice of law. While still an equity shareholder in Ogletree Deakins, I am spending less time this year and looking forward to an even more reduced role in a different capacity in following years.

Regarding this space, my goal is to share, at least in some small way, some of the things I have learned or at least think I have.  I have been fortunate to have a ring side seat to the development of employment law almost from its inception. Only the happenstance of the timing of my birth and education made that possible, so it seems a shame to not at least attempt in some small way to share, even pay back, for the luck of the draw that has been my good fortune.

But as with all things, as reflected by the ancient adage which became popular in my formative years of the '50's, the proof will be in the pudding.

An Unusual Condition of Employment - You Must Be Armed


A 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.

A Georgia businessman who provides aviation insurance has a new one: all employees must carry weapons.  Local station WSB-TV in Atlanta has an interview: Business owner requiring all employees to be armed.

And the station's non-scientific twitter poll follow up: 60% think it is a good idea.


Mandatory Arbitration and the Supreme Court - The First of Potentially Many New Days


As 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 headline and lead:
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.
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.

With yesterday's issue of a judgment by the 5th Circuit in another rebuff to the NLRB, it now has a second chance.  Last October the Court noting that the Board's request for an en banc review of its D.R. Horton decision having failed, the Board would not be surprised that the Court "would adhere, as we must, to our prior ruling," holding that Murphy Oil "did not commit unfair labor practices by requiring employees to sign its arbitration agreement or seeking to enforce that agreement in federal district court."  Murphy Oil, Inc. v. NLRB, (5th Cir. 2015).

However, because of some other issues it was the Court's judgment issued yesterday which started the clock running for appeal to the Supreme Court.  And of course between the ruling on October 15th and yesterday's judgment, the legal world has changed.

Under the Court as it existed both at the time of the D.R. Horton decision or even in October when Murphy Oil  was decided, employers would not have been terribly concerned if the NLRB had appealed.

Today? At least for me, this is the first of what I am sure will be many times as the political process which will produce the next Justice of the Supreme Court grinds slowly that the question will be a much more serious one as to what the world could look like than it was this time last week.

40 Years at the Bar


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.

Lessons from Just One Day's Daily Labor Report


One 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 sour[...]

Domestic Violence: A Possible Solution


One 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.

I have said (actually I think on more than one occasion), that I thought domestic violence would at some point become a major issue for employers. I can't honestly say that has been true, at least not in my experience.

Although I still believe the premise which led to the prediction, that ultimately every major society ill at some point invades the workplace. And regardless of whether it has risen to the top of employer's list of potential problems, there is no question that domestic violence remains a major social problem.

In fact in the recent North Carolina trial I mentioned a couple of days ago, our twelve person jury was reduced to eleven because one of the jurors was the subject to domestic abuse during the course of the trial and felt like she could no longer continue.

So, I am always keen to report any possible solutions, and the Institute for Policy Integrity has come up with a possibility: free legal counsel for victims. The report is Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence.

 I found it through the Huffington Post's article by Melissa Jeltsen, One Simple Idea that Could Reduce Domestic Violence.

And it might not hurt the reputation of lawyers as a group to provide such a service.

Tying it back to my original idea of how this sometimes might show up on an employer's doorstep, another idea would be to allow an employer or other third party to assist in initiating a restraining order to protect one of its employees.

 Arizona is a leader in that regard having a statute that permits an "Injunction against workplace harassment," allowing an employer to take the lead in obtaining relief for one of its employees.

Having such an option would inevitably make employers more involved in the issue, but that might not be a bad thing.

Getting Rid of the Annual Review


All 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.

And I have been saying this for some time now, see this 2005 post:  Just a Reminder About Those Performance Appraisals - Often Known as Plaintiff's  Exhibit #1.

So I am never upset when I see that a major employer has chosen a different path. See Accenture To Nix Performance Reviews and Rankings For All 330,000 Employees.  I particularly liked the explanation by the CEO, that the alternative is a more fluid on-going feedback after each significant interaction. 

Makes sense to me. 

Birthdays: Mine and Jottings


If 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. [...]

Death On the Job: Not Quite as Bad as it Sounds


I 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.

The source for the article is apparently the 2015 edition of Death on the Job: The Toll of Neglect, produced by the AFL-CIO which as it turns out is still based on 2013 data. And you only get to the 150 average by combining 4,585 individuals actually killed on the job and an 'estimated' 50,000 who died from occupational diseases.

Although occupational disease is indeed a significant problem, it is certainly not the same as a worker actually being killed on the job, which is what I had first thought the 150 figure referred to.

Still the figures are fairly startling when you look at them another  way. Rather than using 365 days, which is the basis for the 150 per day figure, if you use 250 working days, which is 52 weeks, 5 days a week, minus 10 days for vacation/holidays, the average number of employees killed per day at work is just over 18 a day.

By contrast, in 2013 32,719 people died in traffic accidents, about 90 a day based on a 365 day basis.

Still that every working day, 18 Americans  go to work but don't come home that evening, is a sobering number.

The Evolution of Employment Law


When I started practicing, 40 years ago, the law of employment was still covered in the legal treatises under the law of Master and Servant. 

We have come a long way. But we still divide those who do the work into two broad categories: employees and independent contractors. 

But in keeping with the well discussed change to a more transactional work force, employment law scholars are beginning to think if those two broad categories are sufficient. 

An article in the Wall Street Journal talks about one possible new construct: dependent contractors. What if There Were a New Type of Worker? Dependent Contractor.  I don't know if that one will ultimately fly, but I do think it is likely there are going to be some new thinking.

Also in the not too distant future, we may finally have a Restatement of Employment Law. I had sort of forgotten that it had been in the works, since it has been in the draft stage for such a long time, but was reminded at a conference last week that it was getting close. According to the ALI website, it is now in final draft form subject only to one more review of the entire body. 

I have suggested that employment law as a discipline really only began with the passage of the Civil Rights Act of 1964. In the bigger scheme of things, that's not that long, so it seems likely that there is a lot of evolving to come.

A Labor Reporter: Steven Greenhouse


The 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.

Trained as both a journalist and a lawyer, the money quote on those two professions is here:
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.

Where is our Portal to Portal Act of 2014? Supreme Court Decision in Integrity Staffing v. Busk


First, 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 “[...]

5th Circuit Takes Expansive View of SOX


While 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.

A whistleblower had raised complaints with both the SEC and later directly to Halliburton's Board of Directors about he perceived as improper accounting practices. Halliburton in response sent an email to the whistleblower's colleagues alerting them to the fact that the SEC was initiating an inquiry, instructing them to maintain all relevant documents, but also identifying the whistleblower.

What happened afterwards was that his colleagues, who had now been accused of wrongdoing, treated him differently.  A reaction the 5th Circuit characterized as "unsurprising."  Menendez, the whistleblower felt it was ostracism and ultimately negotiated a paid leave. When the SEC concluded that no enforcement action against Halliburton was recommended, he resigned a month later.

After OSHA initially throwing out his claim, Menendez requested a hearing before an ALJ. Unsuccessful there, he appealed to the Administrative Review Board, which ultimately ruled in his favor adopting a $30,000 conditional award made by the ALJ.

In the appeal from that ruling to the 5th Circuit, the Court in a per curiam opinion made at least three significant findings:

  1. It held that identifying a whistleblower, at least in an environment where collaboration is valued, is an adverse employment action. It relied on the Supreme Court's decision in White v. Burlington Northern,  which the 5th Circuit had previously adopted for SOX purposes. Allen v. Administrative Review Board (5th Cir. 2008),
  2. That motivating factor does not require any malicious or wrong motive, and
  3. That compensatory damages, specifically mental anguish, are available under SOX.
Not a fact pattern likely to re-occur, but another signal that in the years ahead SOX, and my guess is other whistleblower statutes, are going to be read broadly.

Implicit Bias: A Brave New World


Implicit 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 NYT article earlier this week, Exposing Hidden Bias at Google, gives a pretty good overview of how Google is approaching the issue. And also notes that they first started looking at it way ahead of the curve in 2012.

Although I have done no in depth research, it seems that the case for implicit bias as a "fact" has been made.  But what it means for employment discrimination law remains an open question. For example, see Implicit Bias Evidence and Employment Law: A Voyage Into the Unknown.

One obvious problem is that most employment discrimination cases are brought under a disparate treatment theory, which by definition involves intentional discrimination. As explained in a training class at Google:
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.

Of course, there is also a theory of discrimination, disparate impact, which can be used to challenge unintentional discrimination. It is tied to discriminatory results of a facially neutral business practice. Whether it can be wielded to really address implicit bias remains to be seen.

How implicit bias plays out in the world of employment litigation is an interesting legal issue.

Unfortunately for employers, interesting legal issues are often much more "interesting" for the lawyers than for their clients.

5th Circuit Weighs In On Religious Discrmination


Yesterday'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).

In a 2-1 decision, written by Judge Prado, the Court overturned summary judgment where the district court had found that Davis' absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice. As the district court found, and Fort Bend County argued before the 5th Circuit:
“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.

At a minimum, if you currently have a religious discrimination case pending in the 5th Circuit, you need to be aware of this decision.

Not Off to a Good Start and Onionhead: the newest religion?


Six 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.[...]

12 Years Ago


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.

How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think


If 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:

Confidential Information
Employees 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.
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).

The 5th Circuit review of the Board's decision finding a violation is straightforward:

  1. It is a violation of the NLRA to have a workplace rule that forbids discussion of confidential wage information between employees.
  2. The rule above does not explicitly do that, but it is also a violation if "employees would reasonably construe the language to prohibit Section 7 activity.
  3. Because the clause covers financial information, including costs, that "necessarily includes wages and thereby reinforces that the rule proscribes wage discussion with outsiders."
  4. And the rule makes no attempt exclude some personnel information such as wages, which might make it pass muster.
And less you think this is the opinion of some of the newer members of the 5th Circuit who might have a more liberal bent, the opinion is authored by Chief Judge Stewart and joined by Judges Higginbotham and Jones. 

Confidentiality clauses are just one area of personnel policies that the new NLRB is putting under strict scrutiny. All employers, but particularly non-union employers, need to realize that there is a new entity around, and that not all its actions will be upended by the courts. 

5th Circuit Short Circuits Plaintiff's Use of State Court


In 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.

In Taylor v. Bailey Tool & Manufacturing (5th Cir. 3/10/14), plaintiff originally filed suit in state court alleging only violations of the Texas anti-discrimination statute. Unfortunately, for the plaintiff, the claim was not timely filed. Later plaintiff amended to add Title VII and a Section 1981 claim.

Defendant removed and moved to dismiss arguing all claims were untimely.  Both parties agreed that the state claims were untimely.  Both parties also agreed that whether the federal claims were timely depended on whether Federal Rule of Civil Procedure 15(c) or the Texas relation back rule, TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 applied.

If Rule 15(c) applied, the federal claims, even though filed after the federal statute of limitations would be timely because they would relate back to the filing of the original claim. On the other hand, if the Texas rule applied, they would not be timely because § 16.068 prohibits relation back if the cause of action would have been subject to a plea of limitation when filed.

The 5th Circuit joined the two other circuits (the 6th and 9th)  that had ruled on this matter, holding that the state rule applied, thus barring the claim.

The net result is that plaintiffs will have to make sure that their state claim is timely if they want to avoid federal court.

A simple and straight forward, but important, holding.

How Much Would it Take to Wet Your Whistle?


That's a 64 million dollar question, literally. JP Morgan whistleblower gets $63.9 million in mortgage fraud deal. 

It seems quite likely that headlines like that are apt to make many think that rather than continuing to work as an assistant vice president, as Keith Edwards did before reporting that JP Morgan was submitting mortgages for FHA and VA approval that did not qualify, and apparently not notifying the government that its own internal review had disclosed the problem, that it might make sense to play a new version of the lottery. 

Couple that with the Supreme Court's decision last week expanding the reach of yet another major whistle-blowing statute, Supreme Court Exapnds Scope of Sarbanes-Oxley Whistleblower Liability, and employers and their counsel just have more to think about.

5th Circuit's View on Extraterritorial Application of SOX? Not Yet


One of the many issues still to be decided for whistle-blowing claims under Sarbanes Oxley is how far does the law extend, if at all, for conduct outside the United States.

A Colombian national who had alleged his employer, an affiliate of a U.S. company, was violating Colombian tax law hoped to find the answer to that question.

OSHA had rejected his complaint, finding that because the adverse employment actions, the denial of a pay raise and his termination, had occurred outside the U.S. it had no jurisdiction.  Following his appeal, the Administrative Law Judge agreed, finding §806 of SOX has no extra-territorial application. The Administrative Review Board agreed, primarily because there was no connection between the alleged violation of Colombian law and U.S. securities or financial disclosure law.

Undaunted,  he turned to the 5th Circuit Court of Appeals, but fared no better. Agreeing his complaint failed because it failed to allege a violation of  “one of the six enumerated provisions of U.S. law.”

The question of extraterritorial application? A decision for a later day:
Because we affirm on this narrower ground, we need not reach the argument, advanced by the government and Core Labs, that § 806 does not apply extraterritoriality.

50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives


The 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.

According to a study of the Civil Rights Act's legislative history, The Longest Debate by Charles and Barbara Whalen, the final vote was 290 to 130.
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.
Hard to imagine in light of today's partisan divide in both chambers of Congress.

Regarding Title VII, the bill that was passed and sent to the Senate was actually stronger than the one originally introduced.  It had gone beyond enforcement by persuasion to creating for the first time a private cause of action, albeit one that was much more limited than it would become with the passage of the Civil Rights Act of 1991.

While the passage by the House of Representatives was a major feat standing alone, it was by no means certain that it would amount to more than a grand gesture as the bill now went to the Senate where it awaited a certain filibuster.

I am quite certain that on this date 50 years ago when I was looking forward to the end of 8th grade at Sulphur Springs Junior High School, and the prospect of actually being in high school,  I had no idea that legislation which would change the world as we knew it had achieved such a major step. And certainly no thought that legislation was moving through Congress that would create a new field of law that would ultimately be the way I would spend my entire professional life.

Happy 50th, Sex As a Protected Category


Fifty 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.

Some have viewed his amendment as one last ditch effort to sink the bill, others a slightly more nuanced version that seeing that the bill was ultimately going to pass, Representative Smith sought to make the bill better.

Although there was initial push back from the Democratic floor managers, and much joking colloquy, the amendment ultimately passed.

Whichever view is true, there is no doubt how the world has changed because of what happened 50 years ago today.

Next Year's Headache for Employers


Not 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.

The basis for the lawsuit is a class action suit against Disney, based on alleged failure to notify an applicant that he was not being hired because of a criminal conviction that showed up on a background check. According to the plaintiff's side of the story, the assault occurred when he was 19, was expunged from his record and the credit reporting agency ultimately removed it. Disney has not answered, so it may well have complied with the Fair Credit Reporting Act.

However, according to Fratsch since 2010 there have been been 368 class action lawsuits filed under the FRCA.

In employment law, most  litigation has traditionally involved termination of employment. Which makes sense because in those cases an employee at one time got the job, performed for some period of time, and the employer had to make a conscious decision and carry it out appropriately. Plus, the employee has a vested interest based on his investment in time with his ex-employer and a track record of earnings that will support a damage claim. Not to mention the emotional involvement that comes out of being terminated.

By contrast, hiring claims are not as economically viable. There are lots of applicants for most positions and courts are reluctant to second guess hiring decisions if it seems to be a reasonable choice. Plus applicants generally don't know why they weren't hired, and don't have the emotional level of investment they have when someone has terminated them, plus damages are problematic.

But when you throw in the possibility of a class recovery, with the dollar signs that inevitably follow class litigation, now you have an incentive, not so much for individual employees, but for law firms that focus on class or collective action based employment litigation.

So, for now enjoy the holidays, but in the not too distant future, remind yourself of an employer's obligations under the FCRA and make sure that you are in compliance.