Lessons from Just One Day’s Daily Labor Report

One of the venerable sources of information for labor and employment lawyer’s has been BNA’s Daily Labor Report. I can’t remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk.

But I was just struck by three stories in yesterday’s publication that are just so telling for employment law practitioners.

The first was a story on an FMLA lawsuit:

Firing After FMLA Request Raises Triable IssuesA tool and die designer for a Wisconsin manufacturer who was fired one work day after he asked for intermittent Family and Medical Leave Act leave to tend to his son’s mental health problems raised triable claims that the company retaliated…

How many times do we see these cases, where suspicious timing is the key. A few years back, I can remember trying a case in New Orleans where an employee had been terminated on his first day back after returning from FMLA leave for a heart condition.

The employer was acting on things that it had uncovered while the manager had been out on leave. That of course didn’t keep opposing counsel from harping on the fact that the timing alone was enough to show it was FMLA retaliation. I expected that from opposing counsel, a little more unnerving was the comment by the Judge that he didn’t understand why big companies, with all their resources, do what they do when they knew that it would get them sued.

Fortunately, the jury understood the employer’s dilemma. If, when we had discovered the issues that ultimately led to the termination while he was out on leave, the company had called him in then, the suit would have been about interfering with his actual leave. And woe to the company if that had exacerbated his heart condition!

Still, timing is always a real danger in these cases.

The second story is just yet another example of the proof of the old adage in our business that no good deed goes unpunished. 

Recommendation Letter Saves Fired Professor’s Bias Suit  A black University of California professor who alleged that a department director was motivated by racial bias to refuse to reappoint him under a pretext of budget cuts and poor performance can proceed with his race discrimination claim, the… 

A professor bringing a race claim escapes summary judgment because the department head wrote him a positive letter of reference after telling him he would not be re-appointed because of a budget deficit. The deficit was avoided, others who had also been told they would be let go were not, and Exhibit A is the gracious reference letter. 

Finally, a note showing how aggressive governmental agencies have become in at least considering pushing the limits of employer responsibility. 

Commission Seeks Comment on Workplace Murder Case

The Occupational Safety and Health Review Commission is requesting briefs from interested parties on a pending case that involves the murder of a health-care worker by a potential client, the commission announced in a statement issued Sept…. 

Obviously a tragic event where a health care worker is murdered by a psychiatric patient that she had visited at his home on several occasions. The ALJ found the employer was responsible for a general duty violation. The Commission is now seeking briefing from interested parties:

The commission seeks comments on the extent to which a health-care provider should be able to protect its employees from the potential violent acts of third parties, and whether an employer’s failure to do so should be considered a violation of the general duty clause (29 U.S.C. § 654(a)(1)).

Amazing at how just one day’s post can hit so many of the things I have learned over the past 40 years.

It remains to be seen how much longer I will be learning these lessons from The Daily Labor Report, but it certainly has been a major source of information for a long time.

Domestic Violence: A Possible Solution

One of the humbling aspects of keeping an online journal for any period of time, particularly when you are so unwise as to make predictions is that there exists documented proof of your own errors.

I have said (actually I think on more than one occasion), that I thought domestic violence would at some point become a major issue for employers. I can’t honestly say that has been true, at least not in my experience.

Although I still believe the premise which led to the prediction, that ultimately every major society ill at some point invades the workplace. And regardless of whether it has risen to the top of employer’s list of potential problems, there is no question that domestic violence remains a major social problem.

In fact in the recent North Carolina trial I mentioned a couple of days ago, our twelve person jury was reduced to eleven because one of the jurors was the subject to domestic abuse during the course of the trial and felt like she could no longer continue.

So, I am always keen to report any possible solutions, and the Institute for Policy Integrity has come up with a possibility: free legal counsel for victims. The report is Supporting Survivors: The Economic Benefits of Providing Civil Legal Assistance to Survivors of Domestic Violence.

 I found it through the Huffington Post’s article by Melissa Jeltsen, One Simple Idea that Could Reduce Domestic Violence.

And it might not hurt the reputation of lawyers as a group to provide such a service.

Tying it back to my original idea of how this sometimes might show up on an employer’s doorstep, another idea would be to allow an employer or other third party to assist in initiating a restraining order to protect one of its employees.

 Arizona is a leader in that regard having a statute that permits an “Injunction against workplace harassment,” allowing an employer to take the lead in obtaining relief for one of its employees.

Having such an option would inevitably make employers more involved in the issue, but that might not be a bad thing.

Getting Rid of the Annual Review

All too often, I have seen the annual performance evaluation show up in a trial as a Plaintiff’s exhibit, rather than what you would think should be true, that it ought to be the best evidence for the employer, particularly if the subject of the lawsuit is a dismissal for poor performance.

And I have been saying this for some time now, see this 2005 post:  Just a Reminder About Those Performance Appraisals – Often Known as Plaintiff’s  Exhibit #1.

So I am never upset when I see that a major employer has chosen a different path. See Accenture To Nix Performance Reviews and Rankings For All 330,000 Employees.  I particularly liked the explanation by the CEO, that the alternative is a more fluid on-going feedback after each significant interaction.
Makes sense to me.

Birthdays: Mine and Jottings

If on my 18th birthday, I had been given the following list of what I thought I would be doing on my 65th birthday, I am not sure what my answer would have been:

  • Broadcasting yet another game as the voice of the Houston Astros;
  • Preparing for another year of teaching history at a small liberal arts college;
  • Resting besides my parents in Restlawn Memorial Cemetery;
  • Trying a race discrimination and retaliation case in state court in North Carolina; or
  • Covering politics for the Dallas Morning News

My first choice would probably have been being the voice of the Houston Astros, although in thinking about it, that’s unlikely, both that I would have ever had the chance or that it would be on the list since I didn’t become an Astros fan until I lived in Houston after graduating from law school.

But trying a lawsuit in North Carolina, which is what I was actually doing on my 65th birthday earlier this summer, would probably have not been a choice either.

But as it turns out, trying lawsuits, or more accurately handling lawsuits that occasionally get tried, is how I have spent the last 40 years of my life. And, for good or bad, mostly good I think, at the tail end of that 40 years, it has often meant coming in to help try cases which I have not been involved in preparing. And that’s how I ended up in the Forsyth, North Carolina County Hall of Justice for the month of June, 2015.

The other birthday that also passed unmentioned in these pages occurred last Friday, the 13th anniversary of my first post on Jottings By an Employer’s Lawyer.  Instead of posting, I was in Clovis, New Mexico preparing for a case that was to start trial on Monday, July 20th.  Although one always hear of cases settling on the court house steps, this one actually went beyond that, as it didn’t settle until just before we started jury selection this Monday morning.

Last year’s birthday post contemplated giving it up:

12 Years Ago  Posted 10:08 PM by Michael Fox

I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between.

As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after. Now there are literally hundreds, so the immediate almost news type reporting is amply covered.

So I have contemplated giving this a decent burial. 

However, as I near the end of my active practice, I thought maybe this would be a good space to reflect back on some of the things that have happened.

If that proves workable and meaningful, then maybe Jottings will stay alive for some time. If not, well we can cross that bridge when we get there.

Given the paucity of posting last year, many would argue that much like Tom Watson waving farewell  to the British Open on the Swilcan bridge on the 13th anniversary of this blog, the time has come that I should do the same.

But the sentiment that moved me last year, that there are reflections that I have that might be worth sharing, are still present. I am not sure that this space is much more than my own personal page for reflection at this point, but on the oft chance that anyone is still listening, I am holding off on the farewell wave yet a little longer.

Death On the Job: Not Quite as Bad as it Sounds

I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.

The source for the article is apparently the 2015 edition of Death on the Job: The Toll of Neglect, produced by the AFL-CIO which as it turns out is still based on 2013 data. And you only get to the 150 average by combining 4,585 individuals actually killed on the job and an ‘estimated’ 50,000 who died from occupational diseases.

Although occupational disease is indeed a significant problem, it is certainly not the same as a worker actually being killed on the job, which is what I had first thought the 150 figure referred to.

Still the figures are fairly startling when you look at them another  way. Rather than using 365 days, which is the basis for the 150 per day figure, if you use 250 working days, which is 52 weeks, 5 days a week, minus 10 days for vacation/holidays, the average number of employees killed per day at work is just over 18 a day.

By contrast, in 2013 32,719 people died in traffic accidents, about 90 a day based on a 365 day basis.

Still that every working day, 18 Americans  go to work but don’t come home that evening, is a sobering number.

The Evolution of Employment Law

When I started practicing, 40 years ago, the law of employment was still covered in the legal treatises under the law of Master and Servant. 

We have come a long way. But we still divide those who do the work into two broad categories: employees and independent contractors. 
But in keeping with the well discussed change to a more transactional work force, employment law scholars are beginning to think if those two broad categories are sufficient. 
An article in the Wall Street Journal talks about one possible new construct: dependent contractors. What if There Were a New Type of Worker? Dependent Contractor.  I don’t know if that one will ultimately fly, but I do think it is likely there are going to be some new thinking.
Also in the not too distant future, we may finally have a Restatement of Employment Law. I had sort of forgotten that it had been in the works, since it has been in the draft stage for such a long time, but was reminded at a conference last week that it was getting close. According to the ALI website, it is now in final draft form subject only to one more review of the entire body. 
I have suggested that employment law as a discipline really only began with the passage of the Civil Rights Act of 1964. In the bigger scheme of things, that’s not that long, so it seems likely that there is a lot of evolving to come.

A Labor Reporter: Steven Greenhouse

The Washington Post has a great interview with someone who spent the last 30 years covering the labor beat for the New York Times, Steven Greenhouse.  He is taking a buyout and will be writing a book, but his insight on labor unions and inequality are worth checking out.

Trained as both a journalist and a lawyer, the money quote on those two professions is here:

While I was at law school, I realized the actual work of what one does day to day, that journalism was more fun and intellectually stimulating, I found, than being a lawyer. I decided that if I could get a job at the New York Times or The Washington Post, I would do that rather than being a lawyer….. Many lawyers have said to me that they’re envious that I have such an interesting job, and I turn around and say I’m envious that you’re making five times as much as I am.

For anyone who has any interest in the subject matter that this blog covers, this is required reading.



Where is our Portal to Portal Act of 2014? Supreme Court Decision in Integrity Staffing v. Busk

First, the good news. The Supreme Court today unanimously held that post-shift security checks, even when required by the employer were noncompensable postliminary activities under the Portal to Portal Act, reversing a determination by the 9th Circuit. Integrity Staffing Solutions v. Busk, (S.Ct. 12/10/14).

I was wrong by at least a month on the timing, I had predicted early 2015, but at least I got the results right, and more importantly so did the Supreme Court. Back in September in an Employment Law 360 article I was quoted:

While he said it wouldn’t be a slam dunk, Fox said the justices are more likely than not to reverse the Ninth Circuit, which he said “doesn’t have a great track record” at the Supreme Court. Fox said it’s likely a decision, if it is strongly in favor of retailers, would be issued in early 2015.

A longer wait for a decision would likely jangle nerves among defense lawyers since it would suggest the justices are more divided on the issue — and perhaps more likely to side with the Ninth Circuit, he said.

“I’ll really begin to get nervous if it hangs around to June of next year,” Fox said. “If it’s hanging around until June I think there are going to be more and more people moving closer to the cliff.”

Justice Thomas wrote the decision, and as he often did, looked closely at the language of the statute in question, the Portal to Portal Act of 1947.  Specifically the term “principal activity or activities” as it had been interpreted by the Supreme Court, to mean ‘integral or indispensable’ and basically concluded that since going through a security screening had nothing to do with the job in question, pulling products and packing them for shipping to Amazon consumers, it was clearly not intended to be compensable under the FLSA as amended by the Portal to Portal Act.

He also rejected the 9th Circuit’s emphasis on the fact that it was required by and benefited the employer, noting making the only requirement would totally undo the whole Portal to Portal Act.

As a small aside, Justice Thomas may have made himself more popular with organized labor, as he discounted one of plaintiffs’ arguments, that the employer could have reduced the time spent in the screening to a de minimis amount by adding more security stations or staggering the shifts noting:

These arguments are properly presented to the employer at the bargaining table, see 29 U. S. C. §254(b)(1), not to a court in an FLSA claim.

This decision, like many for employers at the Supreme Court is a welcome relief, not because it greatly advances any particular argument for employers, but because an adverse determination could have been so bad.

Now to the rant.  Notwithstanding Justice Thomas’ well known dislike of legislative history, he does understand the importance of context and so he set out the background of what happened from the the FLSA’s passage in 1938 to the early expansive readings of the language by the Supreme Court, and the need for reaction by Congress, which happened in the Portal to Portal Act of 1947:

These decisions provoked a flood of litigation. In the six months following this Court’s decision in Anderson, unions and employees filed more than 1,500 lawsuits under the FLSA. S. Rep. No. 37, 80th Cong., 1st Sess., pp. 2–3 (1947). These suits sought nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities. Ibid.

Congress responded swiftly. It found that the FLSA had “been interpreted judicially in disregard of long established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U. S. C. §251(a). Declaring the situation to be an “emergency,” Congress found that, if such interpretations “were permitted to stand, . . . the payment of such liabilities would bring about financial ruin of many employers” and “employees would receive windfall payments . . . for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.” §§251(a)–(b).

Congress met this emergency with the Portal-to-PortalAct.

Although the current epidemic of FLSA collective actions which has been well documented perhaps took a little longer to ramp up, you could use almost identical language to Judge Thomas first paragraph above, only the number of lawsuit and the amounts being claimed would be much larger.

Certainly the same harms have been visited on business for the last 15 years. And of course the political chance of a modern Portal to Portal Act which would deal with those issues is not even slim and none, it is just none.

But the courts, including the Supreme Court could act, if they just would by changing the standards for collective action certification. Currently we have a kabuki process where with only minimal evidence, or sometimes not even evidence, just allegations, large classes are ‘conditionally certified’ and employers are extorted to settle to avoid the expense and uncertainty of  large scale, expensive litigation.

Windfalls are created not only for numerous employees who knew full well what the economics of the job they were being asked to do was, but also for lawyers, on both sides of the docket who prosper greatly.

It’s a crazy system, that in a better functioning world would have been solved directly. Instead, the best the courts have come up with so far is to allow employers to escape the problem by opting out of the judicial system into the world of private arbitration.

I am really not one who believes that the world was better in 1947 than today. Heck, even I am not that old. But there is no question that some things were handled better.

5th Circuit Takes Expansive View of SOX

While I was starting a week long trial in the Southern District of Texas, the 5th Circuit was taking a wide, pro-employee view of Sarbanes Oxley.  In Halliburton v. Administrative Review Board (5th Cir. 11.12.14) the Court was faced with an unusual factual case.

A whistleblower had raised complaints with both the SEC and later directly to Halliburton’s Board of Directors about he perceived as improper accounting practices. Halliburton in response sent an email to the whistleblower’s colleagues alerting them to the fact that the SEC was initiating an inquiry, instructing them to maintain all relevant documents, but also identifying the whistleblower.

What happened afterwards was that his colleagues, who had now been accused of wrongdoing, treated him differently.  A reaction the 5th Circuit characterized as “unsurprising.”  Menendez, the whistleblower felt it was ostracism and ultimately negotiated a paid leave. When the SEC concluded that no enforcement action against Halliburton was recommended, he resigned a month later.

After OSHA initially throwing out his claim, Menendez requested a hearing before an ALJ. Unsuccessful there, he appealed to the Administrative Review Board, which ultimately ruled in his favor adopting a $30,000 conditional award made by the ALJ.

In the appeal from that ruling to the 5th Circuit, the Court in a per curiam opinion made at least three significant findings:

  1. It held that identifying a whistleblower, at least in an environment where collaboration is valued, is an adverse employment action. It relied on the Supreme Court’s decision in White v. Burlington Northern,  which the 5th Circuit had previously adopted for SOX purposes. Allen v. Administrative Review Board (5th Cir. 2008),
  2. That motivating factor does not require any malicious or wrong motive, and
  3. That compensatory damages, specifically mental anguish, are available under SOX.
Not a fact pattern likely to re-occur, but another signal that in the years ahead SOX, and my guess is other whistleblower statutes, are going to be read broadly.

Implicit Bias: A Brave New World

Implicit bias as a concept has been bubbling around the world of employment discrimination for a few years now. Although the fact that Google is seriously studying the issue as it applies to its own workforce may not mean that the concept is now main stream, I do think it means it is an issue that we will be hearing more about.

The NYT article earlier this week, Exposing Hidden Bias at Google, gives a pretty good overview of how Google is approaching the issue. And also notes that they first started looking at it way ahead of the curve in 2012.

Although I have done no in depth research, it seems that the case for implicit bias as a “fact” has been made.  But what it means for employment discrimination law remains an open question. For example, see Implicit Bias Evidence and Employment Law: A Voyage Into the Unknown.

One obvious problem is that most employment discrimination cases are brought under a disparate treatment theory, which by definition involves intentional discrimination. As explained in a training class at Google:

The lecture begins with a dismal fact: Everyone is a little bit racist or sexist. If you think you’re immune, take the Implicit Association Test, which empirically measures people’s biases. Dr. Welle goes on to explain that some of the most damaging bias is unconscious; people do the worst stuff without meaning to, or even recognizing that they’re being influenced by their preferences.

Hardly a definition of intentional discrimination.

Of course, there is also a theory of discrimination, disparate impact, which can be used to challenge unintentional discrimination. It is tied to discriminatory results of a facially neutral business practice. Whether it can be wielded to really address implicit bias remains to be seen.

How implicit bias plays out in the world of employment litigation is an interesting legal issue.

Unfortunately for employers, interesting legal issues are often much more “interesting” for the lawyers than for their clients.