Jottings By An Employer's Lawyer: Labor & Employment Law

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Labor & Employment Law

Jottings By An Employer's Lawyer

By an experienced Texas Labor and Employment Lawyer.
By Michael W. Fox, Esq.

Post Frequency: 3.1/day

Last Entry: February 03, 2020 at 15:08:00

Change Coming to Human Resources

Posted on May 11, 2009
Michael VanDervort who has a cleverly titled blog, Human Race Horses, makes a good point about how change can and will happen regardless of the passage of any legislation, 7 People Who Will Change Human Resources in 2009.All seven named by Michael hold positions within the Department of Labor or at the NLRB...

Congrats to Another Old Timer

Posted on May 09, 2009
Mike Fitzgibbons who had the first Canadian labor and employment law blog, Thoughts from a Management Lawyer, has just had his 6th anniversary, Another Day Another Blog Anniversary.If this blog was even in part an inspiration for his, as he so nicely says, then I have assuredly made one clearly positive contribution to the blogosphere...

Legality of 2 Member NLRB Decisions -- A Split Decision

Posted on May 09, 2009
The D.C. Circuit says no, the 7th Circuit says yes. For the details, see Ross Runkel's post, Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.To make matters even more complicated, the 1st Circuit in March held the 2 member decisions were valid, see Two Member NLRB Legal, At Least in the First Circuit...

NLRB to Double with Members Becker & Pearce

Posted on April 27, 2009
President Obama has indicated his intentions to nominate Craig Becker and Mark Pearce as his two Democratic nominees to the National Labor Relations Board. Both have long standing connections with the labor side of the docket. The Washington Labor & Employment Wire, a blog that I don't think I have previously linked to, has the report, Obama Looks to Fill Two NLRB Vacancies with Becker, Pearce, with biographical information on the pair...

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Transgendered Workers in the Mainstream Press

Posted on April 27, 2009
Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business...

It's Not EFCA, Now It's FAN

Posted on April 24, 2009
While the EFCA debate has moved underground for awhile, perhaps the next challenge for employers may be FAN. FAN actually is not the acronym for the act in question, the Arbitration Fairness Act, but rather the Fair Arbitration Now coalition, a group formed to support it...

Congratulations to Jordan Barab, Number 2 at OSHA

Posted on April 19, 2009
I first learned of Jordan Barab by reading his blog, Confined Space. His blog has been dormant since January 24, 2007 when he joined the Committee on Education and Labor working on OSHA related legislation. You can see my comments on the shut down of his blog at A Tremendous Loss - Confined Space Closes Shop...

Texas Law of Covenant Not to Compete Takes Another Step Forward

Posted on April 17, 2009
Anyone who has dealt with the law of non-compete agreements in Texas is aware of a tangled history that grew out of a battle between the legislature and the Supreme Court and culminated in the now infamous decision of Light v. Centel Cellular Co. of Tex...

9th Circuit Joins 6th on Transgender Cases

Posted on April 17, 2009
Although normally the 9th Circuit is the trend setter on new trends in labor and employment law, in Kastl v. Maricopa County Community College Dist.(9th Cir. 4/14/09) [pdf] it found itself following the 6th Circuit's 2004 decision that transgendered employees can state a claim under Title VII on a sex stereotyping theory...

EFCA Road in This Congress Keeps Getting Tougher

Posted on April 08, 2009
Yesterday, as I was posting my view that without compromise on Labor's part EFCA was dead for this Congress, Campaign Diaries was gathering the data to back me up. In their post, Updated Headcount on EFCA they have a modicum of good news for supporters of EFCA in that Senator Udall (D- CO) and Senator Warner (D - VA) have both indicated they will vote for cloture, while withholding opinions on the bill itself...

EFCA - A View From the Field By Supporters

Posted on April 07, 2009
The BeyondChron, a San Francisco alternative newspaper has an interesting article by Randy Shaw, The Obama/Progressive Agenda: A Progress Report, that focuses on the fate of three progressive items -- health care, immigration reform and EFCA. It's his view on the latter that is of most interest here...

MDV - Same Story, How Many Verses?

Posted on April 06, 2009
From the pages of the LA Times comes another MDV report of a public agency, sued by a still current employee for harassment and retaliation for reporting it. This time it was the LA Police Department, Jury awards $2.3 million in LAPD harassment case.Melissa Borck complained of numerous obscene gestures and comments, many of them around a pregnancy that resulted in a still born birth of her son...

Mom of Triplets and Family Responsibility Discrimination in 1st Circuit

Posted on April 02, 2009
Last week the 1st Circuit reversed a summary judgment holding that a mother of triplets had made a sufficient case to go to trial on her charge that she was not selected for a promotion, given to another woman, because the employer applied a stereotype against working mothers...

Employers Win Arbitration Case In Supreme Court, But Watch Out for Congress

Posted on April 01, 2009
In one of the few employment law cases on this year's docket, the Supreme Court today came close, but according to the majority, did not technically overrule one of its oldest precedents under Title VII, Alexander v. Gardner Denver (1974). (It is so old it pre-dates my passage of the bar by one year!)In 14 Penn Plaza LLC v...

EFCA - Post Specter Announcement

Posted on March 26, 2009
Two days after Senator Specter took to the Senate Floor to announce his opposition to EFCA, the best post I have seen on what exactly this means is from Campaign Diaries, Specter announces opposition to EFCA.Among the possibilities, some sort of compromise with four Republicans being eyed as potential votes for cloture: Lisa Murkowski (Alaska); Olympia Snowe and Susan Collins (Maine) and George Voinovich (Ohio)...

Gearing Up for Tougher Wage & Hour Enforcement from DOL

Posted on March 26, 2009
Although given all the FLSA collective actions that have been directed at employers, it would be somewhat foolish to argue that the last few years have been easy, it is clear that a new administration, means likely much tougher enforcement by the DOL...

Specter Won't Be the 60th Vote

Posted on March 24, 2009
As the only Republican Senator to have supported EFCA in the prior Congress, Arlen Specter of Pennsylvania has literally been on the hot seat over the bill since a straight partisan vote would have left it one vote short.In a Senate floor speech this afternoon, Specter called it "a very emotional issue" which may be one of the very few understatements about this piece of legislation given the heated rhetoric that has been coming from all sides...

Texas Parking Lot Gun Bill Moves a Step Closer

Posted on March 24, 2009
S.B. 730, has been reported out of Committee favorably and placed on the intent calendar for today, which means it can now be considered by the full Texas Senate.The Committee vote? Guns 7 - Sanity 0.

Solicitor of Labor Designee - M. Patricia Smith

Posted on March 23, 2009
Also overlooked during my Las Vegas stay was the announcement late Thursday of the Obama administration pick for Solicitor of Labor, New York Labor Commissioner Is Picked for Federal Job. M. Patricia Harris, is the current New York State Labor Commissioner...

EFCA - Six Principles

Posted on March 23, 2009
While I was in Las Vegas for the LEAP Conference and watching the precarious status of my brackets (thanks a lot Wake Forest!), I was monitoring EFCA developments, but not posting. Fortunately, that saved me from posting "breaking news" on a new proposal by the CSW (Costco, Starbucks and Whole Foods, sometimes known as the Seattle to Austin connection) about their 70/50/30 proposal and the reaction to that as traitorous to the cause by many business groups who are active in the fight against EFCA...

The 60th Vote for EFCA

Posted on March 18, 2009
Assuming that all Democrats vote for cloture, which at this point is very far from certain, the 60th and determining vote could be from Republican Senator Specter who already has crossed party lines to vote with the Obama administration to support the stimulus package...

My Obligatory AIG Post

Posted on March 18, 2009
Feeling left out of the hottest topic in not only the blogosphere, but the world, the payment of AIG bonuses, I ran across this employment law related post from TPM that is ironic: 2003 Lawsuit Suggests AIG Wasn't Always So Careful To Honor Bonus Deals.

Others Agree -- It's the Arbitration That's Important (But Can't We Get the Facts Right On the Card Check Portion?)

Posted on March 17, 2009
Politico has an article by Jeanne Cummings today cautioning business about taking its initial surge in raising issues about EFCA too much to heart, Premature partying over 'card check'?The money quote:The suits seem nearly giddy over their apparent first-round public relations win against Big Labor over legislation expanding union organizing powers...

Might Want to Ask Your Judge for a "Non-Twittering" Instruction

Posted on March 16, 2009
Amazing how technology changes life, including the life of a trial lawyer: Juror?s Twitter use in court may cause mistrial.An off the cuff instruction:Jurors are instructed not to blog, twitter, comment on facebook, myspace or any other social media concerning this litigation until 30 days after you are released...

Two Member NLRB Legal, At Least in the First Circuit

Posted on March 13, 2009
The NLRB has been working with only two members (out of five) for over a year now. The two members (one Democrat and one Republican) have only issued decisions when they could agree, which for the most part means the outcome was not particularly controversial...

Individual Claim in Large Scale RIF Leads to MDV

Posted on March 13, 2009
Many employers, and their lawyer's including this one, sometimes feel that there is less exposure to individual claims when there are large, economy driven layoffs. If nothing else it feels less "personal," at least in terms of being singled out. Still as this Newsday story from earlier in the week, Ex-Nassau worker 'delighted' with $1M verdict shows, that is not always the case...

What a Great Time to Be a Labor/Employment Lawyer!

Posted on March 13, 2009
All of us who work in the labor/employment law arena know that for most of the time our niche of the world is very important to those who are focused on it, but generally pretty much an unknown to the larger public. Well that hasn't changed, it's still pretty much an unknown, but with the introduction of the Employee Free Choice Act into Congress and the ensuing media blitz, we are certainly getting our day(s) in the spotlight...

"Manifest Disregard of Law " Now History in 5th Circuit

Posted on March 09, 2009
Although it is not an employment case, last week's decision in Citigroup Global v. Bacon (5th Cir. 3/5/09) [pdf] is important because it makes clear that the 5th Circuit will no longer reverse an arbitrator's decision on the basis of manifest disregard of the law...

Turning Up the Heat on the Immigration Issue in the Texas Legislature

Posted on March 09, 2009
Those who follow Texas legislature know it is not really until April and May that the legislative process really kicks into high gear. Although it meets in regular session only five months every 2 years, most voting on substantive legislation occurs in that two month period...

The Future of Employment Law Activity, Part II.

Posted on March 09, 2009
From MSNBC's web site, a visual depiction of things to come based on the following:Job discrimination claims rise to record levelsIn wake of recent layoffs, complaints for 2008 up 15 percent Just for the record, it was over 95,000 in the EEOC's fiscal year which ended September 30, 2008...

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