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

The Republic Stay In - A Sign of the Times?

Posted on December 08, 2008
The refusal of workers to leave a closed Chicago plant until they are paid may turn out to be an aberrational act, or it could be a precursor of things to come.Although anonymous comments are usually more extreme than what you would otherwise hear, that perhaps give a better picture of at least how deeply some people feel...

Secretary of Labor - One of the Top 5 Posts Still Open

Posted on December 05, 2008
If you follow politics, and who hasn't this year, Politico is a familiar name and one place many head daily for their political fix. When I saw the headline, The 5 best jobs Obama has yet to fill I was curious whether Secretary of Labor would make it, and somewhat surprised to find it did...

A Helpful Case for Basic Discrimination Principles from the Texas Supreme Court

Posted on December 05, 2008
Although it is not a case that breaks new ground, today's per curiam opinion in Autozone, Inc. v. Reyes (12/5/08) [pdf] is one of those nice cases to have when writing a brief in a Texas case, as it gathers in one place the Supreme Court's view on a couple of issues that appear frequently in discrimination lawsuits: stray remarks and comparability of circumstances for determining whether disciplinary action is discriminatory...

Hey Boss, I Had a Good Vacation - How Was Yours?

Posted on December 03, 2008
Having just returned from a week in a magical spot in Mexico, I suppose I still have vacation on the brain, which is my only excuse for the headline to introduce a much more serious topic, Fired Bethel Park woman awarded $1.8M. The "awarder" was a Pittsuburgh federal court jury which of course actually didn't award anything, but made findings that Carole Smith had been improperly terminated because of her sex and pregnancy...

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The Politics of the EFCA

Posted on November 19, 2008
This article from the LA Times seems to me to have the politics of the Employee Free Choice Act pretty much dead to rights, A labor-union problem looms for Obama. It's organized labor's number one agenda item, both Obama and Biden have supported it in the past, but passage of it will cause a real problem with business...

Oklahoma Gun Law Case and the Law of Unintended Consequences

Posted on November 19, 2008
Another chapter in the on-going battle between state legislatures and employers over whether guns can be barred from company parking lots unfolds in the 10th Circuit Court of Appeals this morning when the fate of the Oklahoma statute is heard. The case being argued is Ramsey Winch Inc...

Bullying in the Air?

Posted on November 17, 2008
I hadn't heard or seen much about bullying in the workplace recently, but then a week ago two of my fellow bloggers both had posts: George Lenard wrote Is Workplace Bullying Cause for Concern? and Eric Welter has this post, Are Common Law Remedies an Alternative to Anti-Bullying Laws?Both were sparked by other articles, George by a story based on the Indiana case involving a heart surgeon, see my post on the case here, and Eric on a legal article from the Bench & Bar magazine, a publication of the Minnesota State Bar Association...

Immigration Battle Coming to Texas Legislature

Posted on November 17, 2008
Or at least it will if there is much action on bills to be filed by Representative Leo Berman (R-Tyler), Berman Will File 9 Bills About Illegal Immigration. The Texas legislature has not been heavily involved in the immigration fight that has been a major topic in some other state's recent legislative sessions but that could change this year...

One Hat Out of the Ring for Secretary of Labor

Posted on November 14, 2008
At least that is the report from PolitickerCA.com, a California political blog that styles itself as "Inside Politics for Political Insiders." The headline refers to Rep. George Miller, the Democratic chairman of the House Education and Labor Committee...

More Political Predictions

Posted on October 31, 2008
John Phillips over at the The Word on Employment Law, has stuck his neck out to give his predictions on the top 6 legislative acts affecting employers that he thinks may be passed in the next Congress, Impact of Presidential Politics on Employment Law Issues ? One Final Look...

MDV's Rare According to Justice Report

Posted on October 30, 2008
The headline from a story in today's Law 360, 2005 Civil Damages Awards Rarely Broke $1M ($) caught my eye because of my interest in MDV's in employment law cases. (My reporting on such cases has been sadly neglected recently, which should certainly not convey that they have not been occurring...

Well, Thank Goodness for Consensus

Posted on October 29, 2008
I couldn't help but chuckle at the lead paragraph in today's Daily Labor Report ($) article concerning proposed alcohol and drug testing rules in mines: Although there is an apparent consensus that drug and alcohol use has no place in mines, many miners dislike the proposed rule recently issued by the Labor Department's Mine Safety and Health Administration, which would set standards for drug and alcohol testing of mine employees...

Performance Appraisals: Out Damn Spot!

Posted on October 21, 2008
That's a little overboard and Chris McKinney's post, Getting Rid of Performance Reviews at HR Lawyer's Blog, actually has some helpful ideas for making them better.Performance appraisals has always been one of my hot buttons, second only to job descriptions...

5th Circuit Declines to Be Forum Shopped Under NLRA

Posted on October 20, 2008
Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir...

The Lily Ledbetter Act on the Campaign Trail and a Broader Concern

Posted on October 17, 2008
It seems like everything is political these days. It may be because I am preparing for three presentations in the next three weeks on how the change in administration and a new Congress will impact the labor and employment law world, that it seems that way...

EFCA On the Fastest Track?

Posted on October 17, 2008
Well obviously, the first pre-requisite is an Obama win, but according to Mickey Kaus at Slate, inside sources are predicting fast action on organized labor's top priority. According to Kaus: Dems are getting set to pass "card check" legislation fast next year, right out of the box, assuming Obama wins and the Democrats get their expected big Senate majority...

Colorado Truce - Management & Labor Compromise on Ballot Initiatives

Posted on October 06, 2008
Iit's always good to see management and labor work out their differences, although this is an unusual issue. The WSJ in its story, Executives Pledge Funds as Unions Drop Colorado Initiatives, details a compromise where the business community has agreed to help raise up to $75 million to defeat three anti-union proposals that will be on the November 4th ballot in Colorado, including one designed to make Colorado a right-to-work state...

It's Too Early, But Always Fun - Who Will be the Next Secretary of Labor?

Posted on October 06, 2008
The Congressional Quarterly gets a jump with Saturday's review of candidates for all the Cabinet posts in both a McCain and Obama Administration, including Labor Secretary. Although it's way too early to be making any predictions, to the extent they are accurate it does provide some helpful information in how each candidate might view the position...

Domestic VIolence - a Lurking Issue

Posted on October 06, 2008
Articles, like Domestic violence often bleeds over into workplace from the Birmingham Business Journal, crop up ever so often. Almost every time I see one, it makes me think this continues to be one of those hidden issues that some day is going to come to the forefront on employers' radar screens...

It's the Last Week in September, So Be Ready for EEOC vs. ...

Posted on September 24, 2008
In looking at recent cases filed, I noticed the first EEOC suit in Texas in what is traditionally a very busy week for EEOC filings. U.S. Concepts which was sued yesterday in the Western District of Texas gets that small prize.It is fairly clear that what makes this the week in which a large number of EEOC suits are filed is that September 30 is the end of the government's fiscal year, which also means the end of the period for such metrics as the "numbers of cases filed...

Wal-Mart vs. Wage and Hour Litigation

Posted on September 24, 2008
Wal-Mart has been under a siege of litigation over its payment practices both under the FLSA and various state laws. One of its relatively few victories, the decertification of a 10 year class in Massachusetts has now been taken away by the Supreme Court of the Commonwealth...

Florida's Gun Law - Mostly OK Legally, But Good Policy?

Posted on September 07, 2008
The challenge to one of the most recent laws prohibiting employers from banning firearms from their parking lots is summed up well in a post on the Florida Employment Law Blog, Florida Judge Upholds Most of "Bring Gun to Work" Law; Rejects Customer Section as Unconstitutional...

A Belated Welcome to the Blogosphere to a Fellow Texan

Posted on September 07, 2008
Posting has been very light of late, which is the only excuse for my tardy welcome to Work Matters, a new blog in the labor and employment law world. The author, my good friend Mike Maslanka is not new to that world as he is well known as a prolific author and speaker...

Looking for an Arbitration Award? Here's the Story

Posted on August 27, 2008
If you have ever tried to find a copy of an arbitrator's opinions, you may have felt frustrated. At Publication and Confidentiality of Labor and Employment Arbitration Awards, the Alaska Employment Law Blog has a wonderful overview of how such awards get published (and don't) and where you can look to find them...

Washington State Attorney Gets MDV

Posted on August 18, 2008
Not in her role as attorney, but in her role as terminated prosecutor. Barbara Corey, former prosecutor for Pierce County (Tacoma, Washington) was third in command in the prosecutor's office when she was fired in 2004. The firing occurred after she initiated the transfer of another employee, an act which according to the defense, angered other employees...

George McGovern - A "No" on the EFCA

Posted on August 14, 2008
Yes it is that George McGovern, the Democratic Presidential candidate of 1972, who has come out with a prescient article in the WSJ extolling the dangers of the Employee Free Choice Act, My Party Should Respect Secret Union Ballots. One telling paragraph: I worry that there has been too little discussion about EFCA's true ramifications, and I think much of the congressional support is based on a desire to give our friends among union leaders what they want...

Add Another Whistle - Consumer Product Safety Act

Posted on August 14, 2008
Before leaving town, Congress added yet another whistleblowing provision that was signed into law by President Bush today. A copy of the Whistleblower provision can be found on the DOL's website, Consumer Product Safety Improvement Act of 2008, Sec. 219...

Id al-Fitr for Labor Day - A Different World

Posted on August 11, 2008
I am catching up on some past articles that came in while I have been out of the office and one that caught my eye was the NYT's article from last week, Muslim Holiday at Tyson Plant Creates Furor. At a Shelbyville, Tennessee Tyson plant, the Retail, Wholesale and Department Store Union negotiated a contract which traded the Muslim holiday that is the last day of Ramadan, Id al-Fitr for Labor Day...

USERRA - Not Always in Federal Court.

Posted on August 11, 2008
USERRA cases are relatively rare still (probably not for long) so unusual to see two cases from different circuits on consecutive days. Both are on procedural grounds and in both cases, notwithstanding that USERRA would seem to be the quintessential federal question case, plaintiffs lost out on a federal court hearingThe 6th Circuit today joined the 5th Circuit (see post here) in holding that USERRA claims are subject to arbitration agreements...

Estoppel -- ERISA Joins the List

Posted on August 11, 2008
Actually, it is not accurate to imply that estoppel has not previously been applied to ERISA issues, see 5th Circuit Adopts ERISA Estoppel, But Employee Still Loses. But the 3rd Circuit's decision last week in Pell v. DuPont (3rd Cir. 8/8/08) makes the point of how important it is for employers to be accurate in all of their communications to employees, particularly about retirement benefits...

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