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

EFCA - Strongarm Majority Leader Reid?

Posted on March 03, 2009

MDV in the Garden State

Posted on March 03, 2009

No Longer Secretary of Labor-Designate Solis

Posted on February 24, 2009
By an 80-17 vote, the Senate today confirmed Representative Hilda Solis as Secretary of Labor. See, Solis Confirmed as Labor Secretary. Although it took awhile, for some time now it has been clear that this would happen.What is new "news" is the appointment of Seth Harris as the Deputy Secretary of Labor...

OSHA Preemption Fires a Blank in Oklahoma Gun Law Case

Posted on February 20, 2009
Yesterday the 10th Circuit reversed a district court's holding that the Oklahoma statute requiring employers to allow employees to bring guns to the employer's parking lot was preempted by the general duty clause of OSHA. Ramsey Winch, Inc. v. Bradley (10th Cir...

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Measuring the Future of Employment Law Activity

Posted on February 19, 2009
I am on DOL's mailing list for their weekly unemployment claim report. Here's the one that came this morning:In the week ending Feb. 14, the advance figure for seasonally adjusted initial claims was 627,000, unchanged from the previous week's revised figure of 627,000...

The EEOC, The 5th Circuit and My First Post

Posted on February 18, 2009
On July 17, 2002 not knowing what I was getting into, this was my very first post on Jottings By an Employer's Lawyer:For lack of a green card ..... Posted 9:55 PM by Michael Fox No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received...

Dukes v. Wal-Mart, Not Over Yet, Not Even in the 9th Circuit

Posted on February 16, 2009
The folks at Shaw Valenza were busy working on Valentine's Day and were good enough to post the news that the 9th Circuit had granted an en banc review in the largest sex discrimination class action case ever certified, Dukes v. Wal-Mart. The original 9th Circuit opinion is here...

Stimulating Whistleblowing

Posted on February 16, 2009
The Whistleblower Law blog, an advocate for whistleblowers has a detailed look at the McCaskill Amendment to the stimulus passed by Congress last week, Congress Enacts Robust Whistleblower Protections to Prevent Fraud in Stimulus Spending.It analyzes protected conduct under the bill as including: Gross mismanagement of an agency contract or grant relating to stimulus funds; A gross waste of stimulus funds; A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds; An abuse of authority related to the implementation or use of stimulus funds; or A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds...

Can't Ignore It Any Longer - The Texas Legislature Is In Session

Posted on February 12, 2009
I don't know if it has been that there is so much going on in Washington or a feeling that it is unlikely that anything too severe to employers will actually come out of the Texas legislature, but for some reason I have basically ignored our state solons...

5th Circuit - No Duty To Reimburse Expenses Under H-2B Visa Program

Posted on February 12, 2009
Not many Katrina related cases have been employment law cases, but yesterday the 5th Circuit dealt with an FLSA challenge arising out of a hotel's hiring of workers under the H-2B visa program in the hurricane's aftermath. The challenge was simple. The hotel did not reimburse the workers for their recruitment, transportation and visa expenses, and therefore they did not pay them the minimum wage, free and clear...

What Ledbetter Has Wrought

Posted on February 11, 2009
It hasn't taken long for the effects of The Lilly Ledbetter Fair Pay Act to be felt.My colleague in Morristown, New Jersey, David Copus has been following the Act closely, as well as warning about its potential impact. Here's the latest: The key section of the Act provides as follows: For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice...

Secretary of Labor Designate Solis - One Step Closer

Posted on February 11, 2009
Representative Hilda Solis has been approved by the Senate Committee and could be voted on by the full Senate later this week. Senate panel approves labor nominee Hilda SolisOnly two Republicans voted against her in Committee. Barring any further surprises, she will be confirmed.

Professor Runkel Thinks Solis Is a Goner

Posted on February 08, 2009
Ross Runkel, a long time blogger and law professor has made his Prediction: Taxes will scuttle Solis nomination for Labor Secretary. I still think she will be confirmed, but I am much less sure of that than I was in January when I was making speeches around the state about what's going on in Washington...

The Current Status of the Restatement of Employment Law

Posted on February 08, 2009
A post by Richard Bales on a recent conference at Hastings College of law on the Proposed Restatement of Employment Law is not particularly encouraging about how it is going. This would be the Third Restatement of Employment Law and is being done (as are all Restatements) under the auspices of the American Law Institute...

Because It's Where the Money Is

Posted on February 05, 2009
Although it has never been my intent for this to be a politically focused blog, if you are a relatively new reader, you might not know that. While I certainly don't intend to ignore the rest of the labor and employment world, the fact is that much of what could be most important for employers in the long term is going to be happening in Washington during this session of Congress...

EFCA Introduction "Soon", Solis Committee Vote Today

Posted on February 05, 2009
Representative George Miller did not introduce the EFCA yesterday, but promised to do so "soon." For a good history of how the bill fared last Congress and some background on the coming fight, see The Hill's story, Dems to introduce controversial card check bill 'soon'...

EFCA Petitions To Be Delivered and So Is Scholar's Critique

Posted on February 03, 2009
More than 1.5 million petitions seeking passage of the EFCA will be delivered to members of Congress tomorrow, Rally Tomorrow for Employee Free Choice. It is also expected that the bill will be formally introduced into the House of Representatives.One interesting aspect to note, will it have fewer sponsors than it did in the last session of Congress? Last time there were 230; given the union push and more Democrats in the House you would expect there would be more this time...

Supreme Court Unanimous in Retaliation Case

Posted on January 26, 2009
Today's decision in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09) was certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected. However, the unanimous holding that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII re-enforces that this is not a court that is at all interested in reigning in the law of retaliation...

75% Have an Opinion on the EFCA

Posted on January 23, 2009
Mark Ambinder of Atlantic has an interesting posting on two different polls, one of which garners 75% in favor of the Employee Free Choice Act, the other 74% against it. Poll v. Poll: How Each Side Describes "Card Check." The difference, as any student of polling knows, is how you ask the question...

Big Handslap for the EEOC From the 5th Circuit

Posted on January 16, 2009
I have mentioned in the past how the last week in September often sees an influx of suits filed by the EEOC, see here, but one of those suits has now come back to bite the Commission.In EEOC v. Agro Distribution (5th Cir. 1/15/09) [pdf] the Court upheld the district court's granting of summary judgment against the Commission in a disability claim, and its award to Agro of its attorneys fees for time spent after the deposition of the plaintiff which made clear that he did not have a viable claim...

First Two Votes on Employment Law Issues for New Congress

Posted on January 09, 2009
The House of Representatives has easily passed two employment law bills directed toward compensation issues. The bills and the votes in the House by party are:HR 11, the Lilly Ledbetter Fair Pay Act - Democratic Yeas 244 Democratic Noes 5 Republican Yeas 3 Republican Noes 166 Total Yeas 247 Total Noes 171 15 Members who did not vote...

A "Bully" Professor Goes Online

Posted on January 04, 2009
Those who have read my prior posts or heard one of my presentations on the topic of bullying, will be familiar with the name, David Yamada. He is the law professor who drafted the uniform anti-bullying legislation that has been introduced in several different state legislatures...

A Bad Comination for 2009

Posted on January 02, 2009
With the Obama administration expected to place a much higher emphasis on OSHA enforcement, news that workplace fatalities for 2007 in Texas were the highest in 6 years, is not a good combination. Texas experiences spike in workplace fatalities.The leading causes of Texas workplace death?highway crashes (132), falls to lower levels (72), homicides (70)being struck by an object (47)...

Recession Juries - Good or Bad for Employers?

Posted on December 29, 2008
That was the topic of an interesting article in today's Employment Law 360, Economic Woes Could Make For Stingy Juries ($) . May is the operative words as the jury consultants quoted in the story have differing views.One line of thought is that jurors, feeling their own economic crises are apt to be less likely to give large awards, particularly for "soft" damages like pain and suffering...

Representative Hilda Solis is the Secretary of Labor

Posted on December 18, 2008
At least according to the Associated Press, a href="http://www.google.com/hostednews/ap/article/ALeqM5jEtOI8ay_-XoZrKX9qFZBXsDQb7wD955A1H80"Rep. Hilda Solis is Obama's labor pick/a. The latest in a series of names, but the first report that claims it is a done deal:br /br /Andy Stern is impressed and:br /blockquotepraised Solis for her deep roots in the union movement...

Secretary DeLauro? The Last Slot

Posted on December 18, 2008
pIf Ray Lahood, the Illinois Republican is named Transportation Secretary as has been reported, that will leave Labor as the last formal cabinet position to be named. A new name has surfaced in a Huffington Post article, a href="http://www.huffingtonpost...

EFCA - Voting "At a Time Certain"

Posted on December 11, 2008
There are plenty of individuals writing on the EFCA, so I have not devoted a lot of attention to it. My general view is that while it addresses issues for which a strong case for some change can be made, that it does so by totally revising long held principles of labor law, without a recognition that is what is being done, and without an analysis of what the consequences could be...

EFCA Political Note

Posted on December 10, 2008
Marc Ambinder of Atlantic has a current note on the state of opposition to the Employee Free Choice Act, 60 Might Have Mattered. Quoting an unidentified Republican Senator: "We will do everything we possibly can to get every Republican on board," the senator said...

Secretary of Labor Watch Continues

Posted on December 10, 2008
NBC's First Read, headed by every one's hero of the last political season, Chuckie "T", has their latest up to date administration/cabinet position speculation in today's post, Transition: Remember the Gore meeting? For Secretary of Labor here's their current take: Kathleen Sebelius (asked that her name be removed from consideration from any post), Andy Stern (SEIU) (said not interested), Jennifer Granholm, Richard Gephardt, George Miller, David Bonior (said he?s not interested, suggested: American Rights at Work Executive Director Mary Beth Maxwell), Rep...

Not the Way to Solve the Pay Gap

Posted on December 09, 2008
Tom Peters, who has a brilliant blog and newswire amongh his other worthwhile endeavors has a recent post, Rightside Up?, that notes a telling statistic in last week's Boston Globe: In the last year:Men are down 1,069,000 jobs.Women are up 12,000 jobs...

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