There is FMLA Expansion and Then There Is FMLA Expansion

As I mentioned in an earlier post, I am doing a speech at the SHRM national convention on the potential impact of the 2008 elections. One of the areas I will be covering is possible expansion of the FMLA. But those bills are pikers compared to what was offered in the Connecticut legislature. Thanks to Daniel Schwartz at the Connecticut Employment Law Blog for his post, The Right to Attend Opening Day at Yankee Stadium…and Get Paid by Your Employer.

Actually it was better than just opening day, it was also for the first day of summer, and also “the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes.” But apparently it was more of a satirical offering by some Republicans opposed to paid leave than a serious offer.

I think what is scary is that I wasn’t sure that it was not a serious offer until I read Daniel’s post.

Bush Era Ending Sooner Than You Think

At least from an administrative standpoint. Although one of the Bush countdown timers shows 246 days as of this writing, a memorandum from his Chief of Staff Josh Bolton sent to the heads of federal agencies sets an earlier end point for administrative regulations. According to the website OMB RegWatch article, Bush Sets Policy on Midnight Regulations Bolton wrote:

Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008 and final regulations should be issued no later than November 1, 2008.

The memo has more resonance today with me than it might have a few days ago as I just was reviewing some of the last minute actions taken in the Clinton administration for a speech I will be giving at the 60th Annual SHRM Convention in Chicago this summer on the possible impact of the 2008 elections.

One of the most notable was a change in federal procurement laws issued on December 20, 2000 and effective January 19, 2001 (one day before President Bush was to be sworn in) which would have implemented the so called “blacklisting regulations” which would have given federal contracting officers the power to bar employers who had erred too frequently in complying with tax, labor, employment, environmental, antitrust or consumer protection laws.
Although published as a fait d’accompli on December 20 in Federal Acquisition Circular 97-21, they were first suspended then ultimately repealed by the Bush Administration.

Without regard of the merits, it would be nice if we could all agree that Bolton’s memorandum if carried out, is certainly a more civil, one might say democratic way of approaching the end of a Presidential administration.

Hat tip to the folks at the DLR for spotting the story.

City of Brotherly Love? Not Always, At Least Not in the Police Department

When former Philadelphia Mayor, now Pennsylvania Governor, Ed Rendell was quoted as saying that some voters might not be ready to vote for a black candidate before the Keystone state’s Democratic primary, some just thought it a bit of a political gaffe, but it may have been he just had some extraordinary insight based on his past experiences.

Or at least you could draw that conclusion from the story behind Friday’s Philadelphia Inquirer headline, 3 ex-Phila. police officers win $10 million judgment. The case was reporting the result of a federal court jury verdict in favor of three former white policeman who convinced a jury that they had been retaliated against because they protested how the police department was treating black officers. The awards to the three were for $2,$3 and $5 million.

One interesting note — the case had originally been thrown out on summary judgment. In reversing the case and sending it back for trial, the 3rd Circuit prophetically wrote:

We find that a jury might well believe that their supervisors made their lives the ‘living nightmare’ one supervisor promised as payment for opposing unlawful discrimination.

Reading the 41 page opinion will give you a feel for the kind of facts that led at least this jury to make its multi-million dollar finding. Moore v. City of Philadelphia (3rd Cir. 2006)[pdf].

One small but critical point, the headline references a $10 million “judgment.” What the story speaks about however is not a judgment, but a verdict. The difference — a judgment is a finding that you have to pay, once it becomes final; a verdict, is a jury’s decision that after post-trial review by the Court, can be turned into a judgment. It’s a key distinction, and although a $10 million dollar verdict is bad, and could possibly turn into a $10 million judgment, there is still quite a ways to go.

Still, the point remains whatever the final outcome, this was yet another case where a jury clearly was angered by what they believed happened. You can’t necessarily take a verdict to the bank, but as an employer, you certainly should take it to heart.

So Many MDV’s; So Few Posts

Although posting has been skimpy in general recently, I have been particularly lax on reporting on million dollar verdicts. Unfortunately, it is not that they have gone away, I just have not been a good reporter.

Perhaps I will catch up with them in the coming weeks as well as do updates on some that I have written about earlier. The latter is often a much harder job as the most newsworthy point of most such cases is the day the jury verdict is returned before the the rest of the legal process comes into play. Although the results are often dramatic, they rarely get reported.

In any event, the first reported in some time is a familiar fact pattern. Report of alleged wrongdoing by the company, suspension on the same day and termination less than 2 weeks later. The timing argument is a tough one to overcome, and the newspaper story, Jury awards Orkin termite technician $5.1M in whistle-blower suit doesn’t have enough information to understand what the company’s reason for the termination was. Clearly the jury didn’t understand it either.

Plaintiff’s counsel thought it was the largest verdict to date under the New Jersey Conscientious Employee Protection Act. One slight twist to this case was that four of the five million award was for emotional damages and just slightly over a million for punitive damages.

Unintended Consequences; Maybe Not

Last Wednesday, the Michigan Supreme Court agreed with a lower appellate court that a 2004 amendment to the Michigan Constitution barred governments and state colleges from providing benefits to same sex partners of its employees. National Pride at Work Inc. v. Governor of Michigan (Mich. 5/7/08) [pdf]. My first thought was — another case of unintended consequences, which quite often seems to be a by-product of legislation, particularly legislation passed in haste.

However, a little more digging indicates that may well not be the case. Although voters were apparently told that the amendment was not about rights or benefits that obviously turned out not to be true. And a reading of the amendment itself:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

makes it pretty clear that the Supreme Court probably had little choice but to rule the way it did.

As an editorial from the Grand Rapids Press points out, the six words set out in bold obviously were put there for a purpose. Same-sex benefits: right ruling, wrong message. And now that purpose has shown itself.

The ruling should not impact private sector employers in the state who remain free to do as they wish with respect to this issue.

A hat tip to soon to be Marquette professor Paul Secunda at Workplace Prof Blog for his post, Same Sex Benefits Defeated in Michigan.

Posting Holiday

Getting ready for vacation is time consuming and impacts negatively on posting as my recent (lack of) efforts have shown. However, now that I am actually on holiday, unless there is a rare combination of inspiration, energy and internet (highly unlikely), it will be May 4th when I return before there is likely to be any posts.

And then of course there is that post-vacation catchup which has a similar impact.

In the meantime, adieu.

Two Good Reminders: OFCCP and Testing

In the list of things to worry about, sometimes it’s easy for certain acts or agencies to slip one’s mind. If you are a government contractor and thus have duties under Executive Order 11246, one agency that should not slip too far away is the Office of Federal Contract Compliance Programs.

Generally, OFCCP brings to mind the need for affirmative action plans. But in reviewing those plans, the agency has far ranging powers to investigate discrimination. And the results can be substantial, witness last week’s announcement of a million dollar plus discrimination settlement in the Dallas Business Journal. Vought Aircraft to pay $1.5M to settle discrimination suit.

A second point to remember. Agencies are giving increased attention to testing procedures utilized by employers. The money phrase from both the article and the OFCCP press release about the settlement:

The department concluded that two steps in Vought’s hiring process – an application screening and a test – were primarily responsible for the discrimination.

It was not quite a year ago when the EEOC let it be known that it was also concerned with the impact of employer testing. See Using Any of These Type Tests? They Are on EEOC’s Radar Screen

Bullying Indiana Style Makes a (Limited) Comeback

Readers will know that in my ongoing campaign about the dangers of adoption of a “bullying” cause of action, one case that attracted considerable attention was that of a cardiac surgeon who was accused of being a workplace bully when he charged and yelled at a perfusionist (the fellow who operates the heart/lung machine during open heart surgery).

When the perfusionist sued the surgeon, his legal claims were intentional infliction of emotional distress and assault, but the trial strategy was to present Dr. Raess as a classic “workplace bully.” The jury found for the surgeon on the intentional infliction claim, but for the perfusionist on the assault claim and awarded $325,000. See, Is My One Man Quest Against Bullying Failing?

On appeal the intermediate court threw out the award because the trial court allowed the testimony of a “bullying expert,” Dr. Gary Namie and failed to give a requested instruction that “workplace bullying” was not an issue in the case and that there was no basis in the law for such a claim. See, First “Bullying” Case Goes Down in Flames .

Unfortunately, for the those of us who see this as a very dangerous trend, the Indiana Supreme Court today reversed the appellate court and re-instated the judgment of the trial court. Raess v. Doescher (Ind. 4/8/08) [pdf]. Although it will certainly get more limited attention in any media reports on this case than it should, it is very important to understand the really narrow basis of the decision on the “bullying aspects” of the case.

The opinion addresses two: 1) was admitting the testimony of Dr. Gary Namie as a workplace bullying expert error? and 2) did the Court err when it refused to submit the proposed instruction?

Unfortunately, the answer was no to both. However, the reason for the first was extremely limited — the Court refused to decide the issue because it found the question of Dr. Namie’s qualifications had not been preserved on appeal. (In defense of counsel for the surgeon, that seems to be a very strained reading of what happened.) The one dissenting judge makes clear that he not only found the error had been preserved but that he thought it was error to permit Dr. Namie’s testimony. His view:

Dr. Namie by his own testimony is not a clinical psychologist and is not qualified to testify as to how workplace bullying affected the plaintiff, and he did not testify on that subject. This is testimony characterizing an event, but offering no assistance to interpret or understand it. Without any context, the “workplace bullying” label is noth-ing more than highly prejudicial name-calling of no help to the jury.

On the issue of the instruction, the Court fell back to the argument that in order to be error it must first be a correct statement of the law. In language that will no doubt be utilized in other “bullying” cases the Court said:

The tendered instruction advanced two concepts: (a) that “workplace bullying” was not an issue in the case, and (b) that the jury need not determine whether the defendant was a “workplace bully” to decide the case. As to the first concept, we disagree. In determining whether the defendant assaulted the plaintiff or committed intentional infliction of emotional distress, the behavior of the defendant was very much an issue. The phrase “workplace bullying,” like other general terms used to characterize a person’s behavior, is an entirely appropriate consideration in determining the issues before the jury. As evidenced by the trial court’s questions to counsel during pre-trial proceedings, workplace bullying could “be considered a form of intentional infliction of emotional distress.”

The Court did cite the trial judge’s statement that the parties could argue about workplace bullying not being an issue and pointing out that he was not not giving an instruction that the case was about workplace bullying.

Hopefully any other Court cited this case as supportive of bringing bullying claims or offering “bullying” evidence, will see how limited it is.

It should be a case limited in its application; let’s just hope that in trying to right one wrong, the Indiana Supreme Court has not opened the lid to a true Pandora’s box. At a minimum, they certainly did nothing to help keep it shut.