Labor & Employment Law

Mine Safety Commissioner Moves Back to Chair

Posted on August 18, 2009
Reprising a role she held in the Clinton administration, current member of the Mine Safety & Health Review Commission Mary Lucille Jordan has been designated by President Obama as the Chair, see announcement here. Before being appointed to the Commission, Jordan worked for the United Mine Workers for more than 17 years as an attorney...

Ignorance of the FMLA Is No Excuse; In Fact, It Could Be Evidence

Posted on August 18, 2009
That's just one lesson to be learned from the 10th Circuit's decision in DeFreitas v. Horizon Management Corp. (10th Cir. 8/14/09) [pdf]. In reversing the lower court's grant of summary judgment on DeFreitas interference with FMLA claim, the Court noted:It would be eminently reasonable to believe that an employer who was ignorant of the FMLA?as Mr...

Senator Harkin and the Secret Ballot

Posted on August 18, 2009
Although it does not look like that the card check provisions which would effectively eliminate the secret ballot for determining union representation will survive, at least in any EFCA type bill passed by this Congress, there is still some irony in the comments of Democratic Senator Tom Harkin, who is leading the push for the bill in making the following comment about his fellow Democratic Senator: ?Every two years the caucus could have a secret ballot on whether a chairman should continue, yes or no,? said Sen...

Justice Sotomayor Confirmed, To Be Sworn In Saturday

Posted on August 06, 2009
On Saturday, Justice Sonia Sotomayor will become the third female and first Hispanic justice of the United States Supreme Court following today's 61-38 roll call vote in the Senate. Given that Justice Sotomayor will replace Justice Souter, a consistent member of the current Court's 'liberal' wing, it seems unlikely that her presence will make for a short term dramatic change in the court's direction or voting patterns...

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Atlantic City Jackpot - Disability Claim Leads to MDV

Posted on August 05, 2009
Actually that headline is a little too frivolous for what are clearly serious subjects, employers facing disability claims and depression as a disability. When the two came together before an Atlantic City jury the net result was a verdict for Scott Jones, a 55 year old salesman, Depressed worker wins $1...

Trying to Avoid Layoffs, Employers Turn to Furloughs

Posted on August 02, 2009
Which is a good idea, but one that possesses some legal risks (what doesn't?). One of the primary areas of concern is compliance with wage and hour law. The Department of Labor has put out a timely FAQ, Regarding Furloughs and Other Reductions in Pay and Hours Worked Issues...

EFCA - The Aftermath of a Compromise

Posted on July 23, 2009
Although last week's NYT story announcing a compromise had been reached to drop the card check portion of EFCA has turned out to be either a trial balloon, a non-event or premature, depending on who you listen to, it has been interesting to see the reaction by advocates on both sides...

As Proud as GE Is of Jack Welch ....

Posted on July 20, 2009
My guess is that lawyers there are happy that he didn't make this speech while he was still CEO, Jack Welch: Women Take Time Off for Kids at Their Peril. Or at least how his speech to the national SHRM conference in New Orleans is being reported.Among the quotes from the speech as provided by the ABA Journal on line publication, "?There's no such thing as work-life balance...

Seven Years of Jottings. Why?

Posted on July 17, 2009
If on July 17, 2002 when I made my first post, I had a goal to blog until retirement, today would have marked the 1/2 way point, if not to retirement at least to the time when I reach my full social security retirement age. However, I had no goal and no real plan, just trying out a new and interesting technology...

EFCA --- Compromise a Done Deal?

Posted on July 17, 2009
The New York Times, Democrats Cut Labor Provision Unions Sought, is reporting that a compromise that drops card check in return for 5 day quickie elections now has the support of 60 senators, enough to ensure passage. Although all details are not being released, the hint is that binding arbitration is still included and there may also be equal access provisions to allow unions to campaign on an employer's premises...

Not Much Posting, But Still Talking

Posted on July 15, 2009
Posting has been light of late, but speaking events continue no matter what.For the rest of the month you can catch me at the Texas Association of Business and SHRM State Council 2009 Employment Relations Symposium. More political talk, The Obama Labor & Employment Agenda...

Two HR Giants Merge

Posted on July 08, 2009
There are not many (if any) HR consulting firms larger than Towers Perrin and Watson Wyatt so their merger as reported at the SHRM website, Consulting Giants Watson Wyatt and Towers Perrin Merge, is pretty big news for those who use or would consider using either of these groups...

Supreme Court Gives Victory to New Have Firefighters

Posted on June 29, 2009
Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed...

The Price of Discrimination in England

Posted on June 25, 2009
One of the blogs I follow is from PJHLaw, a Stamford, Lincolnshire, UK law firm that refers to itself as "Exclusively Employment Law Solicitors". Today, they had an interesting summary of 2008 awards in discrimination cases, Equal Opportunities Review...

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Posted on June 23, 2009
Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.The bill prohibits:An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee: (a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters; and political matters:includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity...

Supreme Court Says No Mixed Motive for Age Cases

Posted on June 18, 2009
One of the more anticipated decisions of this Supreme Court was going to answer under what circumstances a mixed-motive decision would be appropriate. Since the whole procedural law of mixed-motive cases seems muddled, help from the Supremes on any aspect was eagerly anticipated...

Texas Employers Unemployment Rate Headed Up

Posted on June 11, 2009
Hardly a surprise I suppose, but Tom Pauken, Chairman of the Texas Workforce Commission which handles unemployment claims in Texas, has confirmed that employers should be prepared for a substantial rise in their unemployment tax rate.According to a story in today's Dallas Morning News:Pauken said that though things could still change, it's probable that the commission next year will need to raise an amount from employers comparable to the amount raised in 2003 ? or 2...

All Politics is Local - the EFCA Ramifications

Posted on June 08, 2009
Speaking to a labor rally before an important speech to the Pennsylvania State Democratic Committee, Senator Specter said he knew that if you want to be elected in Pennsylvania, you have to come to labor.And then there was this exchange on EFCA:"You want our vote? We want yours," shouted retired iron worker John Heinlein...

Arbitration Fairness Act is a Trio, Not a Duo

Posted on June 08, 2009
A reader of my post last week, Arbitration Fairness Act - A Fatal Linkage for Employers, would be forgiven for not understanding that there is a third interest group other than employment and consumer transactions in which arbitration would be banned if the bill passes...

5th Circuit Reverses MSJ in Chronic Fatigue Syndrome Case

Posted on June 05, 2009
In a lengthy opinion, the 5th Circuit today reversed summary judgment for the employer where the district court found plaintiff's chronic fatigue syndrome was not a disability under the ADA. EEOC v. Chevron (5th Cir. 6/5/09) [pdf].The Court also reversed the alternative holding that plaintiff's completion of the medical questionnaire without mentioning her previous diagnosis of CFS 15 years earlier justified her termination...

Arbitration Fairness Act - A Fatal Linkage for Employers

Posted on June 05, 2009
The Arbitration Fairness Act would eliminate pre-dispute arbitration agreements in consumer, franchise and employee matters. I have long argued that because everyone (including me) does not like them snuck into the fine print of consumer agreements that employers were going to be in trouble unless they could break the linkage between employment and consumer agreements...

EFCA - The Dangers of Reporting

Posted on June 04, 2009
I, like many noticed a story that was circulating yesterday from a California radio station that Senator Feinstein D-CA had made major news in a meeting with Santa Clarita Chamber of Commerce members by announcing that she would not support EFCA in any form...

Driving and Talking - Not in Texas School Zones

Posted on June 01, 2009
For some reason I have been struck recently by just how many people have cell phones attached to their ears. Unfortunately, too many of them are behind the wheel of a moving vehicle.The good folks at Workers Comp Insider have an excellent post, Cell Phones: Unsafe at Any Speed?, although it would have been nice to get it to the Texas legislature a little sooner...

ENDA Back Into the Congressional Mix Soon

Posted on May 30, 2009
Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon...

Texas Legislature Takes Care of an Irritant in Texas Arbitration Law

Posted on May 29, 2009
When the law of arbitration in Texas was relatively unsettled, it was common for state district judges to deny motions to compel. To ensure that you were protected on appeal, an employer had to both file an interlocutory appeal AND file a mandamus action under the Federal Arbitration Act...

First Obama Supreme Court Nominee - Sonia Sotomayor

Posted on May 26, 2009
President Obama makes the first of what is expected to be multiple Supreme Court nominations by going to a jurist with a long history, Judge Sonia Sotomayor from the 2nd Circuit Court of Appeals. Although he had talked of selecting someone who had not been a judge, instead his choice has a long track record...

U.S. v. European Labor Model - Time to Reconsider?

Posted on May 22, 2009
I think it will take a lot more than one article from the New York Times to set off much of a discussion on whether or not the European or U.S. labor model is better. Although it might be a more fitting subject for a Labor Day weekend, if you have a few minutes over this three day break, you might read, U...

No Early Supreme Court View on Lily Ledbetter Act

Posted on May 18, 2009
What was always a long shot did not pan out as the Supreme Court today issued its decision in AT&T Corp. v. Hulteen (S.Ct. 5/18/09) [pdf] without giving any guidance on how it would view the Lily Ledbetter Act. At issue was the present effect of a seniority system which treated pregnancy adversely that was used only before the Pregnancy Discrimination Act, although it had on ongoing consequences...

NLRB Speaks on Two Member Decisions

Posted on May 18, 2009
It might seem a little like inside baseball, but Jeffrey Hirsch at Workplace Prof Blog has a good explanation on the NLRB's statement that notwithstanding the DC Circuit's recent decision that it did not have the authority to issue two member decisions, it intends to continue to do so...

Sometimes Overlooked in the Hullabaloo Over EFCA

Posted on May 12, 2009
This from the good folks at BNA who collect statistics and do analysis on union election success rates: Unions won 66.8 percent of representation elections conducted by the National Labor Relations Board in 2008, the highest win rate since BNA PLUS, BNA's research division, began analyzing NLRB data in 1984...

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