Current Employment

New Website!

2008-11-18T10:42:00.006-06:00

This site has moved!

You should be redirected to our new address: http://currentemployment.net automatically. If not, please click the link for new posts and commentary.

More news, better writing and a great new look. Employment law is cool again!

Goodnight, Not Goodbye - CE Goes on Leave

2008-07-30T14:19:00.006-05:00

I have decided that the time has come to either put up or shut up on the changes promised around here, and so I'm pulling the parking brake on the blog for awhile, just while I figure out what direction we're headed.

For those of you who are regulars, I will email you when the hiatus is over. If you are an avid reader that I don't know, feel free to email me your contact info, and I'll put you on the mailing list.

See you guys soon...

Tim

Minimum Wage Goes Up Today! Buy Yourself 0.175 Gallons of Gas!

2008-07-24T10:11:00.005-05:00

The Federal minimum wage lurches up 70 cents today, from $5.85 to $6.55. As the title mentioned, that's about 1/5 a gallon of gas at $4/gallon. By next year, the minimum wage will be at a respectable $7.25 an hour. But given the rapid deterioration of the dollar and consumer confidence in a tailspin, the idea of the MW going "up" may be a little misleading. From the AP:

Last week, the Labor Department reported the fastest inflation since 1991 — 5 percent for June compared with a year earlier. Energy costs soared nearly 25 percent. The price of food rose more than 5 percent.

So the minimum wage hike is "a drop in the bucket compared to the increases in costs, declining labor market, and declining household wealth that consumers have experienced in the past year," Lehman Brothers economist Zach Pandl said.

The new minimum is less than the inflation-adjusted 1997 level of $7.02, and far below the inflation-adjusted level of $10.06 from 40 years ago, according to a Labor Department inflation calculator.

$10.06 in 1968?! I always wondered how those slackers bought all the doorway beads and pot.

But the new wage level isn't just too low to help the workers. It's too high to help small businesses. The AP again:

David Heath, owner of Tiki Tan in College Station, Texas, said the increase will force him to raise prices for his monthly tanning services by about 12 percent. Tiki Tan had been paying its employees $6 per hour.

"There just isn't any room for profit, and so this is why prices will have to go up," he said, citing the wage increase and higher fuel costs. "I have to recoup those costs."

The increase in the minimum wage could push food prices even higher by rising the pay for agricultural workers, said Brian Bethune, chief U.S. economist at consulting firm Global Insight.

But he said he did not expect the change to have a major impact on the economy because recent increases in productivity, which enables companies to produce more with fewer workers, are keeping labor costs in check.

Wha? Seriously? Did the chief U.S. economist at Global Insight just say the only thing holding the economy together is unemployment? Awesome.

If anybody - anybody - out there has a solution to this, please tell me. Or just call the President. Scratch that - tell me. I want this to get done soon.

BREAKING: Sex Is A Major Life Activity

2008-07-21T12:04:00.003-05:00

(HT: LawMemo via Workplace Prof Blog)

In order to prove you have a disability in federal court, you generally have to be able to show 2 things (and this is obviously generalizing a lot):

1. You have some type of impairment.
2. That your impairment substantially limits a 'major life activity'.

Of course, the laws governing disability discrimination neglect to define either of these terms, which means courts have, over the years, had a lot of fun with them. Especially that second requirement.

As it stands right now, breathing, eating, walking, lifting, caring for ones self all count as "major life activities." AIDS is a disability for straight women, because it impairs the major life activity of reproduction, but not for gay men, because it doesn't impair anything but remaining alive, which, interestingly, is not a major life activity. Working is (usually) a major life activity, but working more than 40 hours a week generally isn't. (How one lawyer convinced a bunch of other lawyers of that is a total mystery to me.) In one case involving a mentally handicapped Wal-Mart applicant, the 11th Circuit said they weren't sure if "thinking, communicating and social interaction are ‘major life activities’ under the ADA."

Last month, the D.C. Circuit Court of Appeals made headlines when it held that sleeping was a major life activity. Seriously.

Well, now the D.C. Circuit has done it again: Having sex, apparently, is a major life activity. In Adams v. Rice, the court noted that a woman recovering from cancer, whose symptoms and treatments were messing with her sex life had a valid disability.

All this confusion over what constitutes a disability may be "cleared up" by an amendment before Congress right now, which would define the definition to include anything that "materially restricts" a "major bodily function." The amendment's proponents think this language would encompass things like AIDS and cancer automatically. I wonder if we're just giving the courts two more phrases to ponder over.

Back to sex in D.C. - One of the judges issued a dissent - not arguing that sex isn't a MLA, thank God - but rather saying that the plaintiff didn't show any interference with her sex life until long after the alleged discrimination took place. This is quite interesting, and is a sub-issue that will probably outlast any amendment made to the ADA.

Either way, an appellate court has once again explained something most of us took for granted. Employment law is such a great lens through which to view the difference between the judicial system and real life.

7th Circuit: Woman Fired After In Vitro Treatments Has Valid Cause for Suit

2008-07-17T22:17:00.009-05:00

The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical "bright line" rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of follow some "easy-to-follow" method spelled out in a previous case that just ends up confusing things*.

Whether that's 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defined the rights under the Pregnancy Discrimination Act.

The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act. Which means, basically, that employers can't treat you differently (or fire you) for getting IVF treatments. That probably doesn't seem revolutionary, but it suprised me. Here's why:

The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her "absenteeism" related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the "doin' it" kind) to include pregnancy-related conditions.

Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls - like a Slinky), which means it's not related to "sex" and not protected. So, done deal. Plaintiff loses. That's why the District Court threw the case out in the first place.

Well, not so fast. You can't just say "infertility isn't protected" and close the book. The Plaintiff's "absenteeism" was related to IVF treatments. Show me a guy getting IVF treatments. It's impossible - we don't have the parts. So who cares if there's a "rule" about infertility? This is about pregnancy.

Plaintiff gets to sue.

Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law. It doesn't always happen. In this case, the Plaintiff's complaint didn't even separate IVF from "infertility" (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any "bright line" rule ever would.

* See Paul W. Mollica, "Employment Discrimination Cases in the 7th Circuit", 1 Emp. Rights & Emp. Policy J. 63, 100 (1997). Yeah. Sometimes I cite things. So?

YouTube, Brute?

2008-07-08T20:39:00.003-05:00

Regardless of where you think their loyalty lies in the user privacy debate, it's hard to deny that YouTube is awesome.

That's why, I assume, NY law firm Cohen & Grigsby thought it would be so awesome to put their immigration seminar on the super-popular site. Though, I doubt they thought it would be quite as super-popular as it became (yes, that does say 300,000 views and 2 video responses - eat your heart out, breakdancing cat.) CNN's Lou Dobbs? Not a fan.

Why the attention? The video apparently instructs employers on how to make it look like they searched for qualified American workers before applying for work visas for foreign employees.

Well, the Department of Labor noticed all the media attention. And they're not happy. From the ABA Journal:

[A]fter auditing the law firm's filed permanent labor certification applications, beginning last year, the DOL announced today that it is placing the firm's pending applications into department-supervised recruitment over concerns identified by the audits.

Probably not what they had in mind. In law school they told us to really watch what we put on facebook, because law firms would see it. Apparently that is also true for the firms themselves. But with the government. Then the government has to worry about regular people reading what they accidentally put on there.

The circle of life.

You Only Thought Things Were Bad: 2 Months of Job Rerports Adjusted Down

2008-07-03T15:42:00.003-05:00

The June jobs report (or "jobless report" depending on how pessimistic you are) came out today. The U.S. lost another 62,000 jobs last month. That's bad. But at least we expected it. Not like the rest of the numbers the government released today.

Or, I guess, re-released.

The Department of Labor adjusted its figures for April and May today, too, and apparently we haven't been doing quite as "good" as we thought. May's original numbers put job losses around 49,000. That number is now 62k, equal to June. And April - remember April? 29,000 jobs lost? It was like a breath of fresh air. Well, April got revised to 67,000. That's a change of roughly 230%. How is it possible that the people looking into job losses missed 37,000 lost jobs in one month?!

Hey. Wait. Isn't this report like a key economic indicator? Interesting that the biggest adjustment happened in the month that was originally reported when those economic stimulus checks when out...

I tell you what - let's find those people who check the job losses and revise July's number by a couple hundred analysts.

Well, look on the bright side. If we actually lost 62,000 jobs in May, too, then there's been no change in the past two months. Until next month. When they "adjust" June.

WSJ: Payrolls Shrank Again in June: Jobless Rate Steady at 5.5%

Meet the New Boss, Same as the Old Boss?

2008-07-01T20:25:00.005-05:00

Replace my name with yours and my "name" with the ridiculous name of your choosing, and tell me you did not have this exact conversation at some point in your early teenage years:

Tim: I hate my name. It's stupid. I don't want to be called Tim anymore.
Mom/Dad/Gramma/Buddies: Well, what do you want to be called?
Tim: Bor.
Them: ...
Bor: He's the Father of Odin. Norse God of War.
Them: Okay, Tim.
Tim: Dammit!

Well, Wal*Mart announced last week that it doesn't like it's name anymore, and in an effort to be the hip kid when it goes to highschool, it wants everybody to start calling it... Walmart. They also took that little [chik] from the corner of their ads that looked like it was loading a Youtube video and put it at the end of the word (See new logo, infra).

The logo adjustment is part of a savvy marketing shift that includes new store facades and slogans and locally-grown produce and everything.

Everything but an end to labor problems, of course. Yeah, WM's on the hook again - this time in Minnesota - for $6.5 million, PLUS fines of up to $1,000 per violation. I know what you're saying: a grand? That's the punchline? Well, a grand per violation. And this is Wal*Mart - er, Bor - er, Walmart - so this is a class action. And there are somewhere around two million violations.

That's $2 billion plus in violations possible. Apparently, the managers up in the North Star State haven't been paying their employees when they work over their breaks. If that sounds familiar, this happened to Wal*Mart (remember them?) in Philly in '06 ($140 mil) and California in '05 (>$200 mil). They also settled a similar case in Colorado for $50 million. Oh - and there's about 70 more warming up all over the country.

The case - if you don't let the WM fanatics get in your way - brings up a lot of policy questions about HR and Corporate L&E decisions that are not easy to answer. The management of the Stores of 10,000 Lakes say they were pressured to cut payroll costs by Walmart brass in Arkansas, and since the stores were already understaffed, they started shaving time here and there to save enough to get their own bonuses.

WM is blaming the store managers, saying it's company policy to pay workers for every hour they work. But if you understaff your stores and then set corporate policy to shave payroll figures, is that deliberate on the corporation's part? Is it business judgment?

I don't know. A company should be able to cut costs as needed to be as profitable as possible. But if you're understaffing your stores, and working people as hard as retail employees work (which is really, really hard, if you were privileged enough to avoid such employment), situations like this are next to inevitable.

All I'm trying to say is people aren't going to think your cool if you show up with a new name and some fancy clothes and the same personality.

Will Supreme Court's Reduction of Exxon's Damages Effect Employment Suits?

2008-06-26T12:38:00.013-05:00

A while back, Exxon lost a lawsuit over the notorious Valdez spill (shocker), and a jury said they had to pay $500 million to compensate the plaintiffs, and $5 billion in punitive damages. Yesterday, the Supreme Court said that award was excessive, and reduced the punitive damages to $500 million, equal to the actual damages.

Richard Bales at Workplace Prof Blog has a brief commentary on the effect yesterday's decision could have on employment suits.

He quotes Lyle Denniston at SCOTUSblog to point out the underlying importance of the Exxon decision:

To look at it only [in maritime and common law cases] is to miss the signal that the Court is giving – that is, it has grown highly skeptical that it can spell out, in words rather than numbers, workable guidelines that could bring some sense – some consistency – to punitive damages awards.

And in numerical terms, as Denniston points out, the Court has fixed that ratio at 1:1.

In other words, if you have $500 million in ACTUAL damages (like, what it costs to clean up Alaska), the maximum PUNITIVE damage award will be $500 million - and that's for a case where the captain was drunk.

Bales thinks this could have an awful effect on employment cases. His argument is: since damages in employment cases are usually determined by lost wages, and lost wages are (obv) low for low-income workers (or those unlucky enough to find another job), the actual damages won't cover the cost of trying the case. So an attorneys' only real incentive for taking these cases is the potential recovery of hefty punitive damages. If the punitive damages are capped at 1:1, then the recoveries would be so small that lawyers would stop taking the cases altogether. And then none of us would have anything to do.

But I think it's a little premature to be sounding the end of high-punitive employment cases. First, the Court wasn't making a constitutional decision here, so the 1:1 ratio isn't binding on lower courts. Denniston's argument was that the Court is tired of trying to explain punitive damages, and is going to push other cases to use Exxon math, but that misses Souter's point.

Denniston focuses on a note at the end of the case in which Justice Souter says the 1:1 ratio "may be the constitutional limit." But what he doesn't mention is that this idea comes from the Court's previous decision in State Farm v. Campbell, which said that a single digit ratio (i.e., 9:1 or less), not a 1:1 ratio, is reasonable for punitive damages. State Farm only mentions the 1:1 ratio when ACTUAL damages are really, really big on their own.

In other words, let's say you work in BigBox USA in the Cheap Crap department, and they fire you. You sue, and your lost wages add up to $15,000. Under State Farm, I think, the court will be much less concerned about holding you to an equal ratio for punitive damages than in cases like Exxon or Phillip Morris where the actual damages were 50 to 500 times that much. Under State Farm, you could be looking at punitives at a 9:1 or 8:1 ratio, depending on the severity of the employer's actions. That's $135,000 in punitives, $150,000 total. And I think you could find a lawyer for that kind of return.

If you can't, actually, give me a call.

Apologies

2008-06-26T12:22:00.002-05:00

Sorry it's been a while, everybody. New jobs can kind of pull you away from things like blogging, but I've been doing some "behind the curtain" stuff that will hopefully yield some fruit in the coming weeks, and all that we missed won't be in vain.

Just to put your mind at ease, there will be plenty of new posts between now and the end of the month. We will get to the glut of suprising Supreme Court rulings handed down at the end of the term, and will start talking shop a little about workplace policy, too.

So, we're pulling the indianhead test pattern down one more time here, and gettting back to the business of work.

Breaking: FBI Raids Office of Special Counsel

2008-05-06T16:15:00.001-05:00

The FBI raided the headquarters of the Office of Special Counsel today, and agents from the Office of Personnel Management siezed boxes of evidence from the Director's home. The OSC is responsible for protecting federal whistleblowers from retaliation.

According to the Washington Post, the FBI served 17 subpoenas and sequestered the agency Director, Scott J. Bloch, for questioning. Bloch has been under scrutiny for his handling of the department, and his understanding of whistleblowing in general, since he took the position in 2003.

It is unclear at this time what specifically the Bureau was looking for; the warrant was apparently extremely broad. More news when we get it.

ERISA Makes an Interesting Appearance at the 7th Circuit

2008-05-05T20:06:00.006-05:00

The Seventh Circuit's recent decision in Williams v. Interpublic Severance Pay Plan, No. 07-3146 (dec. April 29.2008) seems straightforward enough. It's an ERISA case. It's not very sexy.

But buried in there, underneath the actual legal analysis, are a couple of things worth mentioning.

1. Easterbrook Schools the Academics?
Judge Easterbrook focuses the first part of his holding on the use of trust law in analyzing ERISA cases. This seems appropriate, as the Supreme Court instructed as much in Firestone v. Bruch. But critics of the federal courts' consistent deference to plan administrators' decisions have been chastising the courts for years, saying they ignore trust law in favor of a rough amalgam of contract, administrative and labor law. And no one epitomizes the anti-deference movement like Yale professor John Langbein, who has written extensively on why he thinks the standard of review under ERISA is out of whack.

So it's no suprise when Judge Easterbrook supports deference to the plan's administrator, or when he uses contract law to do it. But when he supports his holding with "See generally John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L. J. 625 (1995)," call me crazy but that's more than just a holding. That's a shot across the bow.

2. ERISA: the Cartoon
"Second, one must not anthropomorphize 'the administrator.'"

Oh, how many geeky benefits conversations this unfortunate statement could start. What Disney animal would best represent "the administrator?" Would "the administrator" have a high-pitched squeak or a low, dopey voice? How many episodes would it take before "the administrator" would have an anthropomorphically similar character of the opposite gender?

Seriously, though, Easterbrook's point is that administrator's are "commonly large organizations" and don't have any real "interest" in the day-to-day operation of the plan. I know, I know. ZZzzz.

But then, there it was. It might as well have been written in red.

There would be a real conflict of interest if a given administrator put in place a method of linking decisionmakers' income to the substance of their decisions. A quota system...or some other means of tying the wages or promotion of staff to its disposition of claims could call for non-deferential judicial review.

Really? Somebody must have seen "Sicko".

3. Please Deliver 9 Copies to: One First Street, Washington D.C.
Easterbrook ends his interest/deference analysis by noting that (what a coincidence!)the whole thing was presently before the Supremes in MetLife v. Glenn, which was argued (again!) six days before Williams was released. Make of that what you will.

Good News! Right?

2008-05-04T20:39:00.003-05:00

Less people lost their jobs last month than the month before! Right? That's great, right?! I mean, right?!!

The monthly jobs report spurred a surge on Wall Street friday. Yes, the same report that said 20,000 people lost their jobs. I know that seems bad, but when analysts expect numbers in the 60-70k range, 20,000 isn't so bad anymore. Economically, I mean.

Still, remember when the jobs report didn't have a minus sign in the front of it? Yeah, me neither.

39 Employees Canned For Smoking, Lying, Lying About Smoking

2008-04-23T16:12:00.007-05:00

A Whirlpool plant in Indiana has suspended 39 employees who were apparently caught smoking after they claimed on their insurance forms that they were eligible for a $500 credit the company gives to nonsmokers.

My first question was: how in the hell did they get caught? I mean, if there is one group of people who has figured out how to expertly conceal their bad habits, it's smokers. You don't see nailbiters spraying themselves with acrylic in the car on the way home or blaming the nail shreds on the ground on their buddies who were over the night before. Smokers know how to hide it, right?

The workers were suspended after they continued to smoke in designated locations outside the Evansville plant despite enrolling for health insurance in October as non-smokers, avoiding the penalty.*

Okay. Well, I've got nothing to say to that. Consider the $500 a "moron tax" or something.

So now what? With the trend of offering credits for nonsmokers growing so fast, the termination creates a serious question about the plan's future. According to the Tribune's article, these benefits have always been based on the honor system. If Whirlpool found 39 workers, and is threatening more terminations in the future, how viable is the model for everyone else?

Honestly, if smokers have been hiding their habits from their parents and teachers and girlfriends and kids for years and years, what's an employer? If you were offered $500 to say you didn't smoke, and you'd been saying you didn't smoke since you were 14 or something, why wouldn't you sign the dang form?

Besides, you know, losing your job and all.

*[from the Chicago Tribune]

3d Circuit: High School Coach Can't Pray With Players

2008-04-17T08:59:00.007-05:00

In a closely-watched case, the Third Circuit Court of Appeals has ruled that a New Jersey high school football coach violated the Constitution by initiating and participating in student-initiated pre-game prayers.

Marcus Borden, East Brunswick High School's football coach for 23 years, sued the school after the superintendent informed him that his actions during grace at the pre-game dinner and conducting a pre-game "take-a-knee" type prayer had to stop. Borden claimed that the restrictions violated his 1st amendment rights of speech and association.

The case garnered attention during litigation, and blew open when the federal district court ruled in Borden's favor, saying he could bow his head or take a knee when his team captains led the team in prayer.

The odd thing is, while the Third Circuit completely overruled the district court's opinion, it didn't really disagree with that idea.

The crux of the Third Circuit's decision is the way in which a violation of the Establishment Clause is defined:

A school district also violates the Establishment Clause if “a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion. The test does not focus on the government’s subjective purpose when behaving in a particular manner, but instead focuses on the perceptions of the reasonable observer.

The Court then explained that, while "not every religious display of a school official will have the necessary 'history and context' to be an Establishment Clause violation," Borden's history of picking players to pray, asking everyone to stand for grace, and leading the team prayer before games meant that any continued act by him would cause a reasonable observer to believe that he, and therefore the school district, was endorsing the religious activity.

This case-by-case, person-by-person analysis caused a lot of sparks on both sides.

Borden's lawyer, who has said he will appeal to the Supremes, noted that it was "clear from the Third Circuit opinion...that public school coaches who do not have a history of praying with their players can bow their head and take a knee." A fact that he called "a bit of an ambiguity."

Rev. Barry Lynn, director of Americans United for Separation of Church and State (who helped defend the district) praised the opinion on this point, saying it would rein in "coaches who want to act like pastors" without overly restraining coaches who just want to support their teams.

HT's: NY Times, ABA Journal

Employee Sues Over Torture at Work. No, Seriously.

2008-04-14T16:26:00.002-05:00

I have been trying all day to come up with an appropriate joke for this. It's just not going to happen.

This is just messed up.

Wal-Mart Video Scandal!

2008-04-11T14:16:00.006-05:00

Paris Hilton. Pamela Anderson. That Girl from "the Hills".

Wal Mart should've known better.

Rule #1 of being a media-obcessed diva is you have to be wary when you burn your entourage.

The WSJ ran a front pager (via the ABA Journal), reporting that film studio Flagler Productions is charging admission to whomever feels like viewing its stock of internal Mart meetings as a means of staying afloat after Wal Mart cut their contract with the editing house.

From the ABA article:

One video shows Wal-Mart founder Sam Walton telling the board of directors in the 1980s that too few women were in management. Another shows Chief Executive Officer H. Lee Scott Jr. discussing sexual harassment cases in 1999, the Wall Street Journal reports. ABC News has posted the Walton video clip along with one of a Wal-Mart lawyer calling unions “blood-sucking parasites.”

Also, there's tons of video of the execs dressed in drag. Seriously. You think lead counsel in the myriad discrimination cases Wal Mart is fielding are interested?

I'm sure you're asking why Wal Mart would let them do this, since they would have to have signed some type of contract restricting internal meeting video's usage.

Company founder Mike Flagler maintains Wal-Mart has no rights to the videos because it did not sign a contract restricting their use.

Nice work. Somebody in the counsel's office is getting the boot on that one.

Flagler's co-owner Mary Lyn Villaneuva says Wal-Mart has offered to buy the video library for $500,000. Six figs? When every lawyer in the country is going to pay to watch these things? I think Kim Kardashian ponied up more than that.

Here's the link to the video from ABC News. Let me warn you - it is not for the faint of heart.

Florida's New Guns-to-Work Law Restricted to Cars. Rigged Aston Martin Sales Skyrocket

2008-04-11T10:21:00.012-05:00

The Florida state legislature passed a bill earlier this week that would allow anyone in the state with a concealed weapons permit to keep their firearm in their parked car, as long as the car is locked.

For employers, the law overrides the blanket bans most companies have against keeping or storing guns while at work.

The debate, which seems to have been more between the Chamber of Commerce and the NRA than anyone actually voted into office, is whether the employees' Second Amendment rights (a hot button issue in and of itself right now) should trump the company's property rights and interest in maintaining their businesses as they see fit.

In the Miami Herald, the Chamber points out that there is no way for them to know whether their employees have concealed carry permits - the records are exempt from Florida's open info law, and the new bill bars them from asking employees about their status.

In a deftly drafted response, State Senator Durell Peaden of Crestview had this to say (via Reuters):

"The second thing they wrote about in that constitution was the right to bear arms... it was what was dear in their hearts."

See, to me, it's disconcerting when a man whose sole job it is to create and pass laws would not only refer to the premier U.S. legal document as "that constitution" but would presume that they itemized the Bill of Rights in order of importance. Like they sat in Philadelphia and said "Whew. Thank God we got that freedom of speech out of the way. What's next? Housing Soldiers? No, let's do guns..."

Of course, Floridians seem to have more trust in their government than dumb yankee bloggers. Check out the Herald's poll, after the jump.

On the Miami Herald web version of the story, there's a poll with three options:

1. Yes. I own a gun and it's my Second Amendment right to bring it with me to my job.
2. No. I own a gun, but I don't see any logical reason for me to bring it to work.
3. No. I don't own a gun and don't plan on ever getting one and/or bringing one to work.

The results?

I'm honestly not sure what to say about this. I'm usually a pretty "individual rights" kind of guy, but this seems a little... dangerous. Oklahoma had a similar law that was recently kicked by an appellate court there. Alaska, Kentucky and Mississippi have similar laws.

Maybe it's living in Chicago during a year where over 20 high school students have been killed, most by guns (the latest young man was beaten to death with a bat, but in case you were worried about consistency, a man was shot over the weekend at a makeshift memorial for the student.) People here have been talking about giving principles and teachers the right to carry guns.

Anyway, whatever - make up your own minds. Fight about it in the comments. I can't figure it out.

Oh - one more thing. Next to that poll was this ad. One stop shopping on the internet, I guess.

ATA Files Bankruptcy, Strands Employees

2008-04-04T09:08:00.004-05:00

Lost your job in the ~~recession~~ "downturn"? At least you were in your home city when it happened. We try to stay impartial around here, but this has to be one of the biggest middle-fingers to a company's (former) workforce that we've seen in quite some time.

Needless to say, the Pilot's union is not really happy*:

"ATA's customers and employees had absolutely no warning that the airline was
going out of business," Staples said. "This abrupt withdrawal is the airline
equivalent of getting on the last helicopter out of Saigon."

(ATA Pilots Blast Management's Late-Night Decision to Cease Operations via PR NewsWire).

Come on, ATA. You're ridiculously in debt. You've already got the runways reserved. Even if you're going to screw your passengers (look at that poor little kid in the picture), at least fly your laid-off employees home.

*More on this later.

EEOC PDA Claims Starting to Show: "Don't Call Us Fat!"

2008-03-27T16:11:00.006-05:00

Today's WSJ (HT - Workplace Prof Blog)is reporting that the number of Pregnancy-related claims filed at the EEOC jumped 14% last year, and are up 40% from 10 years ago.

My original assumption that there must be 40% more babies being born was apparently false. The article attributes the rise in claims to "both changing demographics and a new activism among mothers," but points out that claims are also high because working women don't exactly understand how they are protected:

[E]ven now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"

Ok, if the law said you couldn't get fired while you were pregnant, or that somebody had to hire you, that 40% jump wouldn't have been such a funny joke (if it ever was to begin with). Of course you can get fired. If you suck at your job, you can always get fired. Well, almost.

You just can't get fired on account of the little Biff or Jilly or Pilot Inspektor you've got in there. And thank God for that. So, a 14% jump based on more empowered women is ok. I think most of us are a little tired of the race/sex/national origin merry-go-round.

Let's do pregnancy for a little while and wait for the inevitable spike in religion cases next year...

SCOTUS: AARP v. EEOC's ADEA DQ'd

2008-03-25T09:34:00.016-05:00

Clearly a statement about the overuse of acronyms, the Supreme Court has denied certiorari in a case between the American Association of Retired Persons and the Equal Employment Opportunity Commission.

The AARP petitioned after the 3th Circuit upheld a Commission rule that employers can offer reduced healthcare to older workers and retirees once they are Medicare-eligible, without violating the ADEA. The Supremes denied the petition Monday.

For it's part, the AARP was none too pleased. AARP Legislative Policy Director David Certner, via On the Hill:

Beyond blatant age discrimination, the new policy is an ineffective Band-aid for the bigger issue facing American employers and workers: the skyrocketing cost of health care," Certner says. "By allowing employers to reduce or even eliminate health benefits for retirees when they reach age 65, this rule essentially shifts the costs of all retiree health care on to the backs of older retirees.

"Blatant age discrimination" against retirees? You know who else has trouble finding affordable healthcare? Everyone who is still working. You knew when the boomers got in there they'd start fighting each other. Here's my legal analysis: not letting employers adjust healthcare rates for the Medicare-eligible makes as much sense as me suing Hooters for discrimination when it rejected my application as a waitress. I mean if. If it rejected my hypothetical application.

Whatever, you get it. Just because something's not equal doesn't mean it's not fair. Incidentally, the rule was promulgated at the insistance of labor groups and other associations, who feared that employers would reduce retiree health benefits across the board if they couldn't take Medicare eligibility into account.

Still, it's a funny, fickle Court they're running out east. Six months ago, it seemed you couldn't get into the place if you were under 55.

Let's play catchup...

2008-03-24T16:24:00.006-05:00

In case you (we) missed it...

The jobs outlook keeps getting worse, the NLRB only has 2 members, TV is slowly coming back (with the right contract), it's not a great time to be looking for a legal legal job (which is super), and the Supreme Court* decided that 401(k) participants were actually entitled to their money, it doesn't take much to satisfy the EEOC, and Judge Alex didn't actually win.

There, now we're all on the same page. Keep up from now on, huh?

*(For a full[?] list of recent and pending SCOTUS employment law cases, see Ross' Employment Law Blog here).

And We're Back!

2008-03-21T10:15:00.007-05:00

Ok, folks. I know you're mad that we disappeared for so long, and you were all convinced that CE was just another random blog that didn't make it past the 6 month mark.

Boy were you wrong.

The bar is over (for the first time, at least), and the CE editorial staff is all graduated-up and everything. Tim had his baby. Well, Tim's wife. You know what I mean. So, it's back to the business of blogging. (I know, I know, we've talked about alliteration...)

Now, as always, we're not making any promises about frequency, but if you notice a lag in between posts, just know it's for a very good reason. In fact, be prepared for your fledgling, little employment law outpost to start taking its first steps towards manhood (no offense, ladies) in the coming weeks. Besides, if you're solely relying on this blog for your daily entertainment or news, then you can't be too worried about staying on top of things in the first place.

So, things may disappear, new things may start showing up, just keep your eyes open, and look for invitations to our coming out party in the mail.

Anyway, say hi to the boys when you see them. Nobody calls me anymore...

Link to entertainment stuff

2008-02-20T15:48:00.002-06:00

So, I take no credit for this article, I am just reposting an article that someone else wrote. Since I am studying for the bar, my mind is mush, and unless I am writing something to the effect of "Circuit Courts are courts of original and general jurisdiction" then I dont' think I should be attempting to inform anyone of any news.

http://www.latimes.com/news/nationworld/washingtondc/la-na-scotus21feb21,1,7055268.story

BREAKING: LaRue Bats 1000 (Or 9, As the Case May Be)

2008-02-20T13:41:00.000-06:00

In a much-awaited decision just released, all 9 Supreme Court Justices have agreed that plan beneficiaries (regular joes like you and me) are able to file suit under ERISA to recover money we would have had if the administrators had followed our instructions.

Prior to the LaRue holding, most courts agreed that ERISA limited suits to recover plan losses had to be brought by the plan, for the plan as a whole. LaRue opens the door for regular people to sue for losses to their individual account, reasoning that their account balance is part of the plan balance.

The decision did a fine job of weaving around the most dicey parts of the case beneath - whether "make whole" remedies (i.e. money) are "equitible" enough to be recoverable under ERISA.

More to come.

On the web:
ScotusWiki on LaRue
Workplace Prof Blog Analysis

FMLA Regs: Military Leave Goes Mainstream

2008-02-09T14:32:00.000-06:00

The days of patchwork state statutory control over military leave for families of soldiers may be finally coming to an end. President Bush recently signed a law that expands FMLA leave to cover family members of injured soldiers coming home from war. That, coupled with new FMLA final regulations from the Department of Labor will hopefully give veterans and servicemembers' families a better understanding of their rights, and give employers a better idea of what they can and cannot allow, without pissing off the Government.

According to the Kansas City Star, the law now gives employees up to 6 months unpaid to care for an injured family member after they get home, and will extend the standard 12-week option to situations where a "qualifying exigency" during active duty service occurs. What's a qualifying exignecy? Wouldn't you like to know. From the article:

Although the latter form of military leave won't become effective until the Secretary of Labor issues regulations defining what a qualifying exigency is, the Labor Department is urging employers to comply with the spirit of the law in the meantime. So employers should use their best judgment about doing so, and "interpret the term broadly...."

The important question in our eyes is whether mental health will be considered a qualified exigency. If not, it's a shame. I know the likelihood of abuse would shoot up, but the benefit of having a parent or sibling or child there for you as you learn to be a civilian again would be incredible. You would think it would be the least the Feds could do, since they're cutting funding for Post-Traumatice Stress treatment, which something like 1 in 7 servicemembers may be coming home with.

Finally, an interesting heads-up: FMLA provisions have always extended to spouses or children caring for family members, and the military provision includes these categories, too, but it also allows the servicemember's nearest blood relative to take off under the Act. This extra category is exclusive to the military portion - the old one is still just spouses and kids.

All the other FMLA regs are coming out, too, but nothing in them is this big (basically, employees are going to have to call and ask for it first - sorry to spoil the suprise), and I have to study for the Bar, so good night for now.

On the web: DOL's announcement/summary of proposed regs.

Pulling Back the Curtain for Some Congratulations...

2008-02-06T00:00:00.000-06:00

We try very hard around here to maintain some journalistic distance, so as to fool some of you into thinking we're a viable source of news, but January has proven to be a pretty full month, and some personal acknowledgements are in order.

First, I just wanted to thank everyone for your thoughts and very kind words these past couple of weeks as my family got one baby bigger. My wife, Katie, did give birth to a baby boy on January 23. Both Katie and our new son, Leo are doing very well. He was born on his due date, which is a good sign, we thnk. Also, because he came on time, his 37th birthday will be 1/23/45, which is pretty awesome.

Leo partied a little too hard on the way out and is spending some time in the NICU at Northwestern's Prentice Women's Hospital recovering (read: flirting with the nurses). We owe them a lot of thanks, and this is my most public outlet, so I'm using the blog to thank our doctor and everyone at NW for all their hardwork and patience with us as new parents.

Also, the CE staff has become significantly more credentialled, as all 3 of our current, active contributors graduated from John Marshall on 1/27. Aaron Janik, Chad DeGroot and I all received JDs and Chad was crazy enough to get his LL.M in Employee Benefits at the same frigging time. Congratulations to everyone - just one test and we can start living the dream...

Once again, thanks for letting me toot my horn. Regular CE operations (which, let's be honest, is almost an oxymoron) will resume soon (like tomorrow) with some even bigger changes coming down the pike, so keep a lookout. In the meantime, feel free to add your own congratulations to Chad or Aaron or myself (or Barack Obama or anyone, really) in the comments if you want to.

No New Posts? Tim is "Busy"

2008-01-24T23:33:00.000-06:00

Hello, everyone. We just wanted to let you know there may not be a post for a while - anyone who has read Tim's profile (or talked to him for 30 seconds) knows his wife, Katie is pregnant.

Well, she was.

At 9:05AM on January 23, Leo Ryan Eavenson was born, and Katie and the baby are both doing well. Tim is, of course, using the excuse to hang out and not do any real work or studying for the bar exam, part of that laziness being that he will not be posting to Current Employment until everyone is home and well and no longer useful as a justifiable excuse.

In the meantime, here are some interesting stories on the state of law firm employment.

Enjoy, and we'll try to get Tim off his butt long enough to post some pics asap.

The Problem With Handbooks? All Those Damn Rules!

2008-01-19T21:22:00.000-06:00

The recently-purchased Tribune Company has issued its newly-revised employee handbook, and it's a doozy. No, not long - it is apparently 2/3 of its original size. And not confusing, either. The L.A. Times (which the company owns) described the manual as "nothing like the mind-numbing, lawyered gobbledygook in most corporate manuals." (Hey! They make that sound like a bad thing.)

No, Sam Zell's new sleek, "innovative" manual eschews legalease for comedy and brevity, I guess hoping to foster camaraderie and brighten the atmosphere at the LA and Chicago offices. But in the process, Zell may be tying a blindfold around the company and walking it to the firing line. According to the Times, the manual begins:

Rule #1: Use your best judgment.

Rule #2: See Rule #1.

Rule #3 better be "ask your buddy who went to law school" or this is going to go downhill fast.

"Use your best judgment"? Honestly, I like Sam Zell. He reminds me of Daddy Warbucks. But this is just a patently bad idea. Does Zell not realize he's talking to reporters? And that's not nearly the worst of it.

For more excerpts from this lawsuit-waiting-to-happen, click the jump.

[Ed Note: We would love to get a copy of this manual. If anyone knows where they might sell bootleg copies, feel free to email us. We preserve anonymity.]

It gets so much better; from the Times article:

Among its nine "core values," the manual encourages employees to "Question authority and push back if you do not like the answer. You will earn respect, and not get into trouble for asking tough questions."

Sure. That's always been my experience. Don't get me wrong - I understand what Zell's thinking - employee handbooks are usually a pretty boring read. So the purpose is good, and sometimes the handbook actually delivers some laughs. Consider the new discrimination policy:

* "2.5. Discrimination based on gender, age, race, religion, national origin, marital status, sexual orientation, disability or any other characteristic not related to performance, ability or attitude, protected by federal or state law, or not protected (such as inability to tell a joke, the occasional poor wardrobe choice or bad hair day), is strictly prohibited."

* "4.5. Making the building too hot, banging on trash can lids or loud bagpipe music are annoyances you can complain about," but such actions don't constitute harassment on the basis of protected characteristics.

Ok, so it's funny. But is it safe? Every proponent of the handbook decried the "legalease" and overlawyered thickness of employee handbooks, one analyst even said it was a good thing that this one hadn't been across counsel's desk. But what the hell is the point of an employee handbook that doesn't keep you out of trouble?

The lead author of the manual, interactive CEO Randy Michaels, is convinced that not showing it to a lawyer is going to cut down on litigation costs for employment cases:

"The more policies you have, the more opportunities there are for someone who is very unhappy to sue.

"I'm amazed and amused at what lawyers get businesspeople to do," he said. "I think we'll have fewer legal problems with plain English and common sense than with pages and pages of rules."

Riiiiight. Let me know how that turns out for you. Honestly, If I'm a plaintiff's lawyer and I read that LA Times article, I'd be sending a business card to every mope at every desk the bullpen and then wait. And if the Trib had a problem with it, I'd tell them I was merely "taking an intelligent risk" (That's Rule #6).

When it's all said and done, you've either got the lawyers at the front end or the back, and all it takes is one lawsuit to make the funniest of manuals look pretty lame.

American Apparel's Business a Little Too Casual?

2008-01-18T23:48:00.000-06:00

A woman fired from designer sweats giant American Apparel has sued her former boss for sexual harassment. Mary Nelson claims that the head of the clothing company, known for making all of its clothes in downtown LA and paying its employees a living wage, made the workplace uncomfortable with his sexual conversation and attitude. Nothing remarkable there. So why am I tell you about it? From the ABA Journal [citing the LA Times]:

Because he worked as a fit model, and was designing an underwear line, there was a legitimate business reason for him to appear at work meetings in the office and elsewhere wearing only his underwear, contends Dov Charney, the founder and chief executive of American Apparel Inc. Furthermore, lawyers for the casual fashion giant contend in court briefs that the "sexually charged workplace" Charney created was appropriate "where employees of both genders deal with sexual conduct, speech and images as part of their jobs" because of the suggestive marketing routinely used to sell the company's garments, reports the Los Angeles Times.

Actually, that might not be too far off. If you don't know American Apparel, just look on the back page of your local, free urban bohemia magazine and you should find one of their bizarre, sexual, amateurish ads for 80's inspired sweats or gold lamé swim trunks for guys.

Even if trying on underpants was part of your job (it's gotta be better than document review), sampling the goods in an accounting meeting - especially when you're the president of the damn company - is probably not the best idea. But then, what do you expect from a guy who says the following in his own defense?

I weigh 155 pounds, I'm five-10. Am I not fit? Is there any job that is not appropriate for me to do? All the big guys did exactly what I do. Versace—they all wore their own bathing suits," he says, referring to designer Gianni Versace, who was murdered in 1998.

Umm... I have an American Apparel polo. It's really nice, but Versace may be a stretch.

This isn't Mr. Charney's first time at this particular pink-skivvied rodeo: He was sued by multiple women in 2005 for sexual harassment, claiming he asked them to hire women he could have sex with, and exposing himself to employees. Two of those cases have settled, but one is still pending, as of last year.

FirmSuit of the Day: The House Always Wins

2008-01-16T21:35:00.000-06:00

Day 2 of Current Employment's week of law firm employment suits is one of those cases that make you wonder if someone at the plaintiff's attorney's office just missed a question on the client questionnaire. Now it's a cautionary tale, thanks to Legal Blog Watch.

The Story: Theresa Brooks worked for Boston's Peabody & Arnold for sixteen years. Then, one day in 2005 she didn't come in. The next day, still no Theresa. Obviously, the firm was a little worried. Brooks had a history of back problems - the firm had given her a special chair, and made some poor chump do her heavy lifting (probably a law clerk).

When Brooks informed the firm that she could no longer work because of her disabling back issues, Peabody decided a little more inquiry might be in order (back problems don't usually lead to trips to the happiest place on earth), so they sent her for an independent medical exam. But even the independent doctor diagnosed her with spondy-something (does this look like the DSM IV?) and agreed it was disabling. Still, 2&1/2 months after she stopped coming in, Peabody fired Brooks, and she sued.

At trial, Peabody showed a secret spycam video of Brooks... What? Oh, get off your horse - you know your firm's got one on you, too. Anyway, the video showed Brooks "working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane," according to the court. But we all know that those videos are edited to make people in wheelchairs look like they spend their days surfing and competing in strongman competitions. That doesn't prove anything, right?

[The video shows that s]he was also physically able to drive forty minutes each way to a casino in Lincoln, Rhode Island, and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type.

Oh. Well. Ok.

Advantage Peabody. Somebody greenlight whoever shot that footage - I smell an indie career. The moral of the story for those of us in the biz? Stick with craps, and it's high table, and let someone else roll.

Wal Mart Settles Supreme Court Case

2008-01-15T09:30:00.000-06:00

A couple of months ago, Wal Mart Assistant General Counsel Miguel Rivera made it clear via a memo to its outside counsel that the legal profession was anything but safe from its policy of exporting efficiency on its suppliers. (They put a moratorium on across-the-board rate hikes, citing skyrocketing associate salaries. Really.)

Well, now it seems the Supreme Court is no exception; the retail giant settled an ADA lawsuit yesterday that would have given the Court the chance to answer a long-pondered question - whether the ADA requires employers to place disabled employees in available positions or simply allow them to participate in the application process. The Court dismissed the case, and the question remains unanswered.

To me, it's just more proof that, for all its benefits, efficiency (economic or judicial) can still leave you so unsatisfied.

FirmSuit of the Day: Holland & Knight Blocks Jumps like Dikembe Mutombo

2008-01-14T20:50:00.000-06:00

In case you missed it, this week is "well, you taught them how to sue" week at CE. Every day we're going to feature a little nugget of law firm internal strife that's ended up in court, and we're kicking things off with a couple of big names: Holland and Knight.

The story [via Blog of Legal Times]: Patricia Dillman, a former Holland & Knight litigation paralegal, is suing her old firm for mucking up (read: tortiously interfering with) her imminent transfer to another global powerhouse, Hughes Hubbard. Apparently, the gigantic firm responded to Dillman's 2-week notice by conflict-checking the paralegal's new position against her work at H-K. When a red flag came up based on some environmental work, Holland contacted Hughes, which promptly pulled the plug on the job.

The Good Parts: Most people's first question is what the big deal is about conflict-checking a departing employee. Well, nothing. When they're lawyers. But Dillman was a paralegal - she wasn't bound by the professional ethics rules that usually trip up travelling lawyers - and anyway, wall-offs are run-of-the-mill in firms the size of these two. Otherwise, no one could ever lateral. So, why did HK conflict-check her to begin with?

For the juice, keep reading.
First off, this was no ordinary paralegal. Dillman was the head of the litigation department's support group, and her new gig was set to bag her $200k a year in Hughes' NY office. Not the kind of person you want to let walk into another multinational firm and start shaking hands. Second, that "environmental work" she was allegedly a part of was the sinking of the oil tanker Prestige, the worst environmental disaster in the history of Spain. And her client was...well...Spain. From the BLT Article:

Spain said the [American Bureau of Shipping], which checks the structural fitness of ships, was negligent in classifying the 26-year-old vessel as fit to haul fuel. Six months after the bureau gave clearance, the Prestige became caught in a storm and Spain refused to give the ship port. The Prestige eventually split in half and sank.

So, Holland represents Spain. Hmm. [Insert joke of choice]. Anyways, guess who reps the bureau? Yep:

According to the complaint, Holland partner Brian Starer told Hughes Hubbard attorneys [representing the ABS] during a deposition in the Reino de Espana case that Holland might try to disqualify the firm from the lawsuit if Dillman began working there.

This case is a seesaw. If Dillman's telling the truth, she was a tragic victim of an underhanded litigation strategy. If not, then does that mean Holland was justified in notifying its opponent of a non-attorney's potential conflict? Dillman's alleging that she did little more than copies and letter writing in the Spain suit, which puts Holland's comments to Hughes in a bad light.

If she's telling the truth, she's a true tragic victim, complete with her own Shakespearean ending: a judge in New York dismissed the entire action by the Spanish government a few days ago, holding Spain has to pursue the case in its own courts.

More tomorrow.

Well, You DID Teach Them How to Sue

2008-01-13T21:37:00.000-06:00

It probably comes as no suprise that there are a few of us on the Current Employment staff that fancy ourselves trendspotters (Chad). The majority of the time, this self-assumption is patently wrong (once again). But since 1/1/08, there has been a pretty clear line of stories that can no longer be ignored, and so CE is ready to announce its official First L&E Trend of 2008:

It is, apparently, super-cool to sue your boss if your boss is a lawyer.

Now, obviously, law firm employment suits are not a new thing. Just ask Sullivan & Cromwell or Sidley & Austin. But since '08 started, it seems like I can't turn on the CE-puter without finding out somebody's suing some huge law firm for being intolerant or demanding or petty. Isn't there some kind of "par for the course" defense? Well, whatever. There should be.

Of course, just because these are law firm employees doesn't make these suits any different - they're just your run of the mill little guy/big company/ secret videotape/pedophilia/intervening foreign government/written on notebook paper type employment suits.

Since that's a lot of material to cover in one post (and we're in BarBri and this provides pre-determined content for the week) we're declaring this week "Well, You Taught Them How to Sue" week at Current Employment. Every day (maybe more) we're going to focus on a law firm law suit that we've run across since the beginning of the year. If you have any suggestions, feel free to pass them along.

“This is unambiguously negative.”

2008-01-05T06:39:00.000-06:00

Whoopee, Happy new year. 2008 is looking stellar so far.

The title quote is from the NY Times - it's Mark Zandi, chief economist at Moody's, reacting to the DOL jobs report issued yesterday which shows unemployment at 5% for the first time since 2005 and a mere 18,000 jobs created. 18,000. When I saw it I hoped a decimal place was missing.

But, fear not, you massess of laid-off manufacturing workers! The President says your sacrifice was not in vain! White House spokesman Tony Fratto (Seriously? What happened to Snow? He was two spokesmen ago? And the other one was a chick? Man, I can't keep track anymore...) Anyways, White House Spokesman-of-the-day Fratto said the report was "good news" (no joke) because the country was still creating jobs. From Forbes:

'Anytime that you have more Americans working than you previously had, that is good news and certainly good news for those who have jobs,' Fratto told reporters at the White House....

Ok, I'm not trying to bring down the lucky 18,000 government and food service employees that got paid last month, but when construction and manufacturing industries shed like 80,000 positions (again, no joke), it doesn't take an economist to figure out what's wrong with touting such meager job growth as a success. From the NYT article:

For the third consecutive month, wages grew slower than the pace of inflation, cutting into the real income of many workers. Among rank-and-file workers, who make up more than four-fifths of the labor force, average hourly earnings rose 3.7 percent last year, below the 4.3 percent rise in 2006.

Yeah, "good news" may be a stretch.

Thankfully, we're not running for office, and the job market is merely a contributory factor to employment law, so we can just acknowledge and move on. This is just a friendly heads-up - it's getting pretty recession-y out there, so watch where you step.

CE's Official 2007 Lazy-Ass Best-of-Best-of!!

2007-12-30T09:44:00.000-06:00

It's that inevitable time of year in fake journalism land where everybody decides to rank the stuff that happened in the past 12 months, and employment reports are (sadly? thankfully?) not immune.

The thing is, the CE staff is in this beautiful space between the end of finals and the beginning of BarBri (PMBR notwithstanding) that we presume will be our last respite before bar exams, babies, and long 1st-year associate hours, so we're not exactly poring over our posts.

I will attempt some kind of roundup between now and 1/1/8, but in the meantime, Current Employment would like to present it's list of:

THE BEST EMPLOYMENT-RELATED BEST-OF LISTS OF 2007!!
Yeah, that's right. We've taken all the very best very best lists and put them in order, given them numbers with dots and a closed parenth, and added some witty commentary. You say lazy, I say resourceful.

So, without further ado, let's get started:

5. 13 Most Overrated Careers [U.S. News]
- What is it with USN? Why do they have to rank everything? Jerks. Anyway, the publication we love to hate has come up with its difinitive list of the 13 crappiest jobs. Adding to my neuroses that the World Report hates me personally, it includes not only my chosen profession (attorney) but those of my wife (advertising executive) and both our mothers (teacher) as well. Surely each profession will release a statement about how it's tightening its admissions policies in an effort to improve.

4. AARP's Best Employers 2007 [AARP]
- Ok. It's the American Association of Retired Persons. Remember? Personally, the best list AARP could come up with would be the best reasons to stay home and make way for the new kids, but such is life. And such are the boomers. With their ridiculous standards and work ethic, sticking it out to get those kids through college, or going to work at the Gap or something, it's good that the AARP is telling them where to go. Now if only someone could tell them who to vote for...

For #'s 3-1, click the jump.

3. The Sound Opinions 2007 Mixtapes [Sound Opinions - NPR]
- Hey, not everying can be about employment law, ok? Live a little.

2. Worst Employees of 2007 [CNN]
- One lady who left a little girl in a day care (not funny at all) and Amy Jacobson, the Chicago reporter who lost her job after hanging out with the Stebic guy (ditto). Combined with a horrifying graphic, this is a little questionable. The guy with the obvious pot business is pretty funny, though. Plus, where's the 10 worst employers? Let's be fair, huh?

1. Stupidest Footnotes of 2007 [footnoted.org]
- Michelle Leder at Footnoted.org pores through SEC filings to find executive perks that don't make the corporate press release. Last year, she ranked them at the end of the year, and it was awesome. This year, she's democratized the process, polling readers on what the biggest boneheaded corporate concession was in '07. Leading the way by far? Qwest's contract with its CEO included use of the corporate jet to get his high school daughter to and from school. For real. Nothing on any list could possibly top that.

There you have it. The best of the Best Of's. We'll have a little something for you OCD-laden rank-obsessed attorneys before 1/1, I promise. For now, though, I'm off to write another letter to U.S. News.

San Francisco "Pay or Play" DOA - ERISA Chews Up Another Pay or Play Law

2007-12-28T10:30:00.000-06:00

Those of you who have been with us since the beginning (or have done some serious digging) know that one of our first posts at CE was on the unfortunate demise of the Suffolk County Fair Share Act, back in July. We said then that the Retail Industry Leaders of America was on a rampage trying to stop state "pay or play" healthcare laws by convincing federal judges they were per se preempted by ERISA - before Suffolk was a Maryland pay or play law that RILA put the brakes on.

How apropos, then, as we reflect on the year, that another business association has given us opportunity to revisit our earliest days. The Golden Gate Restaurant Association just got summary judgment in a lawsuit against the city of San Francisco in which it argued (what else) that the city's pay or play law, which was to go into effect next week, was preempted by ERISA.

From the Sacramento Business Journal:

Under the San Francisco plan, employers with 20 to 99 employees would have to spend $1.17 an hour per employee on health benefits or pay that amount to the city. Businesses with 100 employees or more would have to spend $1.76 an hour for each employee.

Judge Wright ruled that the mandate interferes with ERISA provisions that specifies employer autonomy over whether and how to provide employee coverage. The decision stems from a lawsuit filed by the Golden State Restaurant Association, which argued the mandatory contributions place a costly burden on business owners.

Man, when ERISA makes the MSM, you know something's going on. Though city attorney Michael Herrera is taking the appeal to the 9th Circuit, it's clear that the state is fighting this battle, since the SF plan is pretty much a petri dish for the statewide plan sitting the Cali Legislature.

As far as Herrera's chances go, his argument is not totally off base. From the city's press release:

“Although state and local laws that dictate employer choices about ERISA plans are preempted, legal requirements that employers may readily satisfy without altering or adopting ERISA plans are not because they do not interfere with uniform benefit plan administration,” Herrera argued. “San Francisco’s Ordinance clearly falls in this latter category, because it allows employers to comply with the health care spending requirement without adopting an ERISA plan or altering an existing ERISA plan. If an employer wishes to avoid the burdens of setting up a plan, or wishes to maintain plan uniformity across jurisdictions, it can simply make payments to the City, and those payments will make their employees eligible for substantial health benefits—benefits that would cost a great deal more in the private market.”

Going against Herrera, of course, is the fact that this argument has completely failed twice before. In his favor is 1.) logic (to a certain extent) and 2.) the fact that the 9th Circuit is crazy, and they seem to like poking the Supreme Court in the face with cases like this.

In the meantime, though, that ERISA keeps getting fatter and fatter on preempted laws. At the risk of biased commentary, may I suggest she at least start chewing up and spitting out, rather than swallowing them whole?

Santa - Better Off Self Employed

2007-12-27T10:31:00.000-06:00

December 27th is about the time I start to wake up from the morphine-like daze of Christmastime and return to my cranky, cynical self for another 362 days or so. If you woke up this morning realizing how creepy the thought of dancing sugarplums really is, here's a little help getting over your happy holiday hangover: Santa's apparently a worker's comp disaster. From Worker's Comp Insider:

There's no two ways about it - Santa is an underwriter's nightmare. He's overweight, he drives too fast, and there is some evidence that he is tipping brandy while he drives. Plus he smokes a pipe and eats too many cookies.

Interesting. Plus, that's just for him. You factor in the liability for those elves in that factory, with their primitive tools and oversized hands, and you've got a serious W/C policy.

This begs an interesting question, though. Who's Santa's employer? If he's in business for himself, he's probably got some kind of S-corp set up, right? If he's smart, he'd Sam Zell it and pump stock into an ESOP for those elves. If Santa's just pulling a paycheck, though, my money's on God as ER. He is a Saint, after all.

Anyway, if you're having trouble getting that nog taste out of your mouth, or you just can't stop being polite to strangers, just think of the liability insurance the Big Guy's gotta take out on that North Pole operation. That should pull you into frustrated cynicism in time for your overcrowded new year's parties and insincere resolutions.

Ho Ho Whoa!

2007-12-19T10:49:00.000-06:00

Daniel Schwartz at Connecticut Employment Law Blog (which graphically puts our fledgling rag to shame) has brought a very important, under reported holiday issue to everyone's attention - sexual harassment of mall Santa Clauses.

Yep. Apparently, ~~creepy women~~ older girls have been waiting in line to talk to Santa, hoping to raise their rank on the naughty list. From the Hartford Courant (via the post):

A 33-year-old woman who posed for a picture with Santa Claus at Danbury Fair Mall over the weekend wanted more than a photo, police said.

Sandrama Lamy inappropriately touched a 65-year-old worker dressed as Santa on Saturday while sitting on his lap, police said. She is charged with fourth-degree sexual assault and breach of peace, both misdemeanors.

While the post points out that the real Santa is "presumably...an independent contractor," his buddies that fill in for him in malls may be employees. So? Liability? Schwartz says probably not, because the DOL regs require that the employer know or should have known the harassment was likely. From the post:

I'm just taking a hunch here, but I'm imagining that this kind of harassment of Santa Claus is pretty rare; thus, its unlikely the employer could have foreseen this kind of harassment. (Readers, please let me know if I'm off base here). And now, after the incident has occurred by this customer, the police have arrested the woman, making it unlikely to occur from her again.

For her part, according to an interview with the Danbury News-Times (via Above the Law), Lamy says didn't do anything wrong. She didn't even sit on his lap:

"Why would I do this? There were so many people there. If he (Santa) needed a few extra bucks I would have given it to him," Lamy said. "I've never been involved in a crime or anything. This is shocking to me."

Ok, that's got to be the quote of the year. Still, what the hell was a 33 year old lady doing in line to see Santa in the first place? You're asking for trouble is all I'm saying. (And you thought that Wizard of Oz kid with the goggles from a Christmas Story was creepy.)

I took my dog to see Santa at PetSmart last year. That gig's probably pretty safe. Maybe you get peed on a little, but I'm thinking mall Santas have to worry about that one anyway.

The Job Bored: Katsup Edition

2007-12-18T09:41:00.000-06:00

UAW ends strike at International Truck, drops ULP charges. No, we're not taking the heat for this one - the UAW strikes at bright lights & loud noises these days. No one with a life could keep up. [AP]

Scandal over illegal workers and clashes with unions over Social Security overhaul ousts government's head of labor. In Greece. Had you fooled for a minute though, right? [NYT]

The Killers back in court on former manager's $3 mil. unpaid commision suit. We know this just happened, but the Killers are so five minutes ago. [TMZ.com (it's a gossip website - ask your wife/daughter)]

Writer's Guild having trouble with Conglomerate Conglomerate, decides to just work with conglomerates for better result. [Official release, via UnitedHollywood.com] NOTE: comprehensive update on the WGA sitch to follow some time this week. I promise.

What Day is It? October?

2007-12-18T08:20:00.000-06:00

So, we've all been a little busy. Ok, well maybe you haven't, but we have. Thankfully, the CE staff (who take a remarkable amount of overlapping classes) will all be done with finals by the end of the day. The bad news is, we maybe missed some things, as yesterday's post proves. So, as editor I'm making it my responsibility to clean up the clutter.

To that end, I am hereby declaring the second-to-last week of December

Current Employment ~~Ketchup~~ Catchup Week!

Obviously, if something big comes down the pike, we'll cover it, but for the rest of the week, we'll be devoting the majority of our blog space to some of the stories we missed the past few weeks (months, whatever).

So if you have any suggestions on stories we should have covered (or any other ways we could've legitimized ourselves and didn't) feel free to shoot me an email. Unless it's about benefits, in which case, tell Chad. Or sports or entertainment - that's Aaron.

Haste Makes Waste? Unions Feeling Flattened by Busy Board

2007-12-17T13:03:00.000-06:00

[Ed. note: I really wanted to figure out how to put the phrase "churning urn of burning funk" in the title somewhere, but god help me, I'm just too tired.]

They're protesting in D.C. Using catchy nicknames. American Rights at Work has started a blog. The ABA is having a conference, for chrissakes. Clearly, something is going on over at the NLRB.

It has been dubbed the "September Steamroll": 61 decisions in the course of a few weeks that, according to the labor folks, are a big high-five to anti-union emoployers and a different gesture - using a few less fingers - to the unions trying to organize them.

The unions say that the prolific actions of the National Labor Relations Board this fall, including some big ones we missed reporting on around here (citing), are a last-ditch effort by a Bush-appointed Board to "do as much damage as possble".

A summary of the big decisions and some coverage of the debate over their importance appears after the jump.

On November 15 union supporters marched through D.C. in protest of the "steamroll", carrying super clever signs that said "NLRB: Close it For Renovations" (whoever's writing for these guys should help out the WGA). In fairness, they also had signs that said something about the Employee Free Choice Act - boo-ring! Pick one protest and stick to it, huh?

The mass of decisions includes cases like Toering Electric Co. (blog post here), which further eroded the already tenuous protection afforded to union salts, and a doozy called Dana Corp. that overhauled (some would say eliminated) the ability of a union to be voted in by card check.

The WaPo article on the protests quotes former board members as saying that this is just a busy board trying to get in cases before the end of the year, and of course they're going to side with business, because the majority is republican. But there's another quote in the piece that makes this impartial observer think twice. From Chairman Battista's prepared statement:

If these groups truly believe that our recent decisions are not consistent with the National Labor Relations Act, they are free to challenge those decisions in court -- either directly in those cases in which they are a party, or they can assist in such a challenge in those cases where they are not a party," Battista said in the statement. "I am confident that our decisions will be upheld on review.

Confident? Yeah, I bet he is.

The unions are focused too much on the short term. The Board isn't racing because they've only got until 2008. If the Board is truly pro-business (as has been recently alleged) it's had this gun cocked a long time. All that's happened now is that John Roberts showed up and pulled the trigger.

If you were the NLRB, and you'd been wishing you could favor business and screw unions if only the courts wouldn't get in your way, and then Roberts shows up and starts throwing out $80 million cigarrette verdicts and giving pension plans automatic subrogation rights on participant personal injury judgments, wouldn't you get a little more ballsy? The way I see it, Battista & Co. are throwing down a gauntlet - waiting for someone to roll this heavy machinery across town and see what happens.

But, like most steamrollers, this one's bound to move pretty damn slow (pertinent holiday exceptions noted). And in the meantime, expect these decisions to make their way up federal circuits that will start to look more and more disjointed, between conflicting rulings and the inevitable change of personnel at the Board next fall.

Not a bad time to be entering the L&E world, huh? Speaking of which, back to finals. See everyone soon.

Me Three - the Court Questions Your Buddy's Testimony

2007-12-05T00:11:00.000-06:00

The Supreme Court took up the issue of "me too" evidence in discrimination claims on Monday, hearing arguments in Mendelsohn v. Sprint. The case hinges on whether or not testimony of other employees who were allegedly discriminated against ("me too" evidence) is admissible as circumstantial evidence of another employee's alleged discrimination. Did that make sense?

It's like this. You sue your employer. I say "hey, that happened to me, too" (thus the catchy name) usually under a different supervisor. I testify at your trial as to my events, thus providing "evidence" that your discrimination happened.

As always, SCOTUSblog (and now the awesome SCOTUSwiki - my new favorite website) has the best coverage. Not to be outdone the New York Times has a synopsis of the orals, noting that the Roberts Court seemed to be more conservative than Bush's EEOC, which would like to allow "me too" information when it can jive with the relevance and nonprejudicial rules of evidence.

Most of the Court seemed to think that letting in "me too" evidence would necessitate "minitrials" within trials to determine whether or not the information was accurate, and therefore relevant. From Paul Cane's Argument for Sprint:

Had the "me, too" evidence been admitted, then we would have had to respond with what might be called "not you, either" evidence. And then the plaintiff would have made a rebuttal to that showing, and we would have had trials within a trial on whether these couple of persons that plaintiff identified as potential bad actors were, in fact, bad actors...

I think they should disallow the use of the evidence until someone comes up with descriptions that don't make us sound like we're fighting over a Tonka truck.

Justice Souter said the evidence would be highly prejudicial, but could be probative too. After all, if your supervisor is discriminating and mine is discriminating, isn't that a sign of something? Not surprisingly, Justice Scalia didn't think so. Turns out, this is a really good oral transcript to read if you're a 2L stuck in evidence, because it goes to show you can be a Supreme Court Justice and still not know what Rule 403 really covers.

And then Justice Breyer sort of went off the deep end a little and said that "me too" evidence couldn't be allowed in or "[w]e’ll have trials that last a thousand years..."

A thousand years. Hmm. So, like longer than the time between now and the Magna Charta. Maybe the Court should start taking on more mandatory retirement cases...

Anyway, as posted here, this decision could have pretty sweeping effects on future pattern and practice cases. It's unlikely this is an issue the Court will balk on (unlike, say, 401(k) recovery for individual claimants).

Maintaining Radio Silence...

2007-12-04T08:07:00.000-06:00

Sorry for the delay in posts.

The CE staff is in the throes of its final finals season ever. You know we will allways try to keep you as up-to-date as possible on all the L&E news we can, but we'd also like to do it without failing out of school a month before graduation.

Thanks for your patience.

NFL scrambling for answers after safety Taylors death

2007-11-27T22:32:00.001-06:00

Washington Redskins safety Sean Taylor, 24, died today from a gunshot wound he suffered at his home in south Florida. While his death is a tradegy it leads to some serious issues related to the NFL salary cap and what, if any, relief the Redskins will be able to recoup. According to NFL senior vice president of public relations Greg Aiello, the league has "no specific salary-cap rules" governing a player's death.

Taylor, a former University of Miami Hurricance standout, had a base salary of $1.125 million. Taylor already collected 12 weeks worth of that salary and, per league rules, the Redskins will not be liable for the remaining 5 weeks of the season against the salary cap. What remains to be seen is how the remaining years of his contract will be counted against the salary cap.

One can only hope that the Redskins and owner Daniel Synder will make sure that Taylor's girlfriend of seven years and his one year old daughter will recieve the appropriate benefits due to his tragic death.

India Ready to In-source Outsiders? Clifford’s Chance is More than Cheap IT.

2007-11-26T16:43:00.001-06:00

As we reported earlier, India is getting more and more foreign legal work from the States – cheap stuff here like document review that's even cheaper when done over there. Well, it's not just this side of the Atlantic that's hemorrhaging the boring stuff. The UK has been moving work to India, too, Law.com reports, and they are taking drastic steps to do so.

From the article:

Then there's Clifford Chance's more radical bid to cut costs. In 2004 the firm outsourced part of its document production function to an Indian center operated by Integreon Managed Solutions Inc., a global outsourcing specialist, which then advised Clifford Chance on setting up its own facility in New Delhi. To date, the firm has focused on moving basic accounting and IT functions to India, covering such things as payments to suppliers, invoices, expenses and IT system development.

In contrast to outsourcing efforts by other Magic Circle firms, Clifford Chance's Indian staff are all direct employees of the firm. "It's all fairly small-scale compared with what financial institutions have done, but having 100 people in New Delhi will be a big deal for us," Childs says. Two senior members of staff, operations director Wayne Phillips and financial controller Jo Harvey, have relocated to India to manage the office.

Wow. A whole office devoted to IT and support services. But wait – even if setting up a New Delhi office is cheaper than doing IT work in London, how is it possibly cheaper than outsourcing that work to a company like Integreon that is already equipped? The likely answer is that it's not – and I'm thinking Clifford Chance has another reason for investing a little capital in "the final legal frontier".

Here's a hint: ask yourself why a firm would outsource its doc review to a 3rd party even though it has an office in India, then click the jump.

Why? Because India doesn't let foreign lawyers practice law within its borders. And the UK (along with the rest of Europe) is doing everything they can to get it changed. From InsideCounsel:

In March key members of India's legal community converged in London on the invitation of the Law Society of England and Wales. The Society made its aim clear: it wanted to convince India's government to lift its ban on foreign attorneys practicing in India. As late as the end of August, the Press Trust of India reported India's government was discussing the matter with India's legal community, which opposes liberalization out of fear that Indian firms will lose business to large international firms.

***

"In many countries, [in-house counsel] can reach out to a White & Case or a Mayer Brown, but you're not going to be able to do that in India," says Greg Kalbaugh, director and counsel of the U.S.–India Business Counsel. "So you're going to have to build up a repository or a connection with a domestic law firm."

The "charm offensive" didn't work. The Bar Council of India (BCI) released a statement not long after the schmoozing saying opening the borders would hurt the Indian legal market.

The ban, based on a 1991 interpretation of Indian law, is being reconsidered by the Indian legislature, and the fight is definitely on over the country's "liberalisation". UK lawyers, obviously, support the plan to open India's borders, while the BCI has released a series of statements admonishing the legislature to confer with it before any decision is made. From LegalWeek:

The [latest] statement, which was issued last weekend (18 November) during a conference on liberalisation hosted by the BCI, calls on the Indian Government to delay relaxing its rules on foreign lawyers until further consultation with the body, which says liberalisation will damage the local market.

However, the conference did authorise the BCI to discuss restrictions on Indian lawyers abroad and reciprocal arrangements with the UK's trade and justice ministries, as well as the legal regulators of other countries.

The developments come as the Indian Government attempts to overturn a 1991 ruling that saw foreign lawyers banned from practising in India under the terms of the Advocates Act.

The Government filed a counter-affidavit in the Mumbai High Court this week arguing that the Act applies only to domestic lawyers and that no legislative changes are therefore required to allow foreign lawyers to practise in the country.

The UK firms argue that being banned from India is hurting their clients who want to do business in the company. Indian attorneys are quick to point out that there are lawyers in India they can call. So it's the lawyers against the governments of both India and the UK. We wish them well. And what's the prize? Well, that part's easy. From The Times Online:

In their quest to grow revenues and profits, European firms are disappointed to be missing out on an increasing amount of lucrative work coming out of India. With estimates of annual growth ranging between 7 and 9 per cent, its economy is one of the fasting-growing in the world. Even more importantly, the type of economic activity that European law firms are likely to profit from is growing even faster.

The firms want to work on large, cross-border deals. Last year, the value of acquisitions by non-Indian companies of Indian companies jumped 200 per cent. Since 2000, the value of takeovers by foreign buyers has grown from $4.4 billion to more than $30 billion so far this year, according to Thomson Financial. (This year's total has already passed last year's despite fears of a global slow down.)

There is a clear picture: European law firm's clients are buying in India but protectionist rules means their fees are going to Indian law firms.

So, ok, back to Clifford Chance. Hopefully by now it's easy to see why it may be worthwhile to open a Delhi office for administrative work, rather than truly sourcing it out. The day the High Court opens that gate, the Clifford Chance website is going to have a significantly more colorful map than any of its competitors. The real question in my mind is, how is it possible that they're the only firm with their name on a door over there?

Eye Witness Report on LaRue Oral Arguments

2007-11-26T13:39:00.000-06:00

Just got this email from Marc DeBofsky (ERISA case law wizard and CE's Benefits Litigation professor) and thought I'd pass it along:

From a friend of mine –
Just got back from the oral argument in LaRue [v. DeWolff, Boberg & Associates]
Court asked lots of questions whether the claim should be brought under A(1)(b) versus (a).

Section 502(a)3 was barely discussed and I would doubt that the court will reach that issue at all.

Prediction -- a win under [502](a)2. Votes - 5-4 or 6-3. Kennedy asked no questions.

Anybody else see the show? Any predictions, eye-witness or otherwise, feel free to leave in the comments.

For all the discrimination lawyers out there, LaRue is the ERISA case asking whether individual plaintiffs should be allowed to recover money they would have gained if the 401(k) plan administrators had followed their investment instructions properly. LaRue lost pretty big when his retirement wasn't invested according to his specs.

If you're thinking anything like "well, of course they can, why would congress pass a law to protect people where plaintiffs can't recover under common law theories..." let me just stop you right there. You are entering a world of pain. Just stop. Don't look up the annotated statute or try and find a treatise or anything. Ignorance is bliss, I promise you.

How the Stole

2007-11-21T17:08:00.000-06:00

There were too many funny headline options, so this is a choose-your-own joke post.

The AP is reporting that a NY Supreme Court Judge has granted an injunction against the Broadway lockout for at least one show: How the Grinch Stole Christmas.

From the article:

"I'm going to grant the injunction" against the lockout, state Supreme Court Justice Helen Freedman said Wednesday. "I think one Grinch in town is enough."

Her ruling came a day after she heard arguments from producers of the show and owners of the theater housing the $6 million production. Producers, citing a special contract between the show and Jujamcyn Theaters, wanted the show to go on.

So, who's the Grinch and what are they stealing? So many options... Feel free to discuss.

Supreme Court Grants Cert. on Awesome California Labor Case - And Also Some Gun Thing.

2007-11-20T18:44:00.000-06:00

I know, I know. Everyone's talking about D.C. v. Heller, the Second Amendment bombshell of a cert. grant. Believe me, the D.C. Circuit version, Parker, was my life for 3 months of moot courtness this fall. I'm interested.

But if you want to talk guns, you're in the wrong place - unless it's a postal service article or something - and Heller was not the only cert petition granted today.

The Supremes agreed to hear a challenge of a California labor statute that prohibits employer communication during a union campaign. The case, Chamber of Commerce v. Brown, could give the Court a chance to define the extent an employer's noncoercive speech is protected by the 1st Amendment or Section 8 of the NLRA. Except, of course, that it's been long-settled that both of those things are true, so, that's dangerous.

From the Petition for Cert.:

[The statute] forbids employers that receive either a state "grant" or over $10,000 from a "state program" from using those funds "to assist, promote, or deter union organizing," which is defined as "any attempt by an employer to influence the decision of its employees in this state or those of its subcontractors regarding either ...[w]hether to support or oppose a labor organization that represents or seeks to represent those employees ... [or] [w]hether to become a member of any labor organization," This proscription applies to "any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning, or coordination of, or carrying out, an activity to assist, promote, or deter union organizing."

The 9th Circuit held en banc that the state law wasn't preempted by the NLRA because it only tangentially touches on noncoercive speech. And then it got good:

[The 9th Circuit held that the statute was not preempted] because noncoercive employer speech is neither actually nor arguably protected by the NLRA. It held that section 8(c) of the NLRA does not grant employers speech rights but "simply prohibits their noncoercive speech from being used as evidence of an unfair labor practice."

Wow. That could be a thing.

We're thinking that SCOTUS is going to overrule the 9th Circuit here. Why? Two reasons: 1) the Roberts Court is clearly pro-business, and this case, brought by the California Chamber of Commerce, is as "business" as they come, and 2) the Supreme Court always overrules the 9th Circuit. Seriously, their like the Buffalo Bills - it doesn't matter how good they are, they're never going to win.

CE Certified: "That's What She Said"

2007-11-19T15:45:00.000-06:00

I'll admit it. I am jealous of Julie Elgar.

I have serious blog envy. Don't get me wrong, we love providing you guys color commentary on the L&E crumbs we get thrown, but Ms. Elgar is sitting at the table. Her latest post began thusly:

Well, it finally happened. An employee has sued Dunder Mifflin for wrongful termination. I’m not usually one to say “I told you so” but, somehow, I just can’t stop myself this morning.

Yeah, Elgar's blawg, That's What She Said, provides weekly wednesday-morning quarterbacking of NBC's The Office, complete with estimated final dollar amount of the sure-to-follow lawsuit (last week's was $200k).

If you haven't checked out That's What She Said, you now have no excuse. We've had a link on the right forever, and now we've given it the "Current Employment Certified" 20-point inspection. As icing, here's another quote from "The Deposition":

[D]espite what Jan may think now, Michael’s testimony might not be that bad for her case. Sure he went “off message,” but he is also a regional manager who just referred to his former supervisor’s breasts as “the twins.” Under oath. That
just doesn’t look good. At all.

Seriously, go read the blog. Do it especially if you're not an attorney - Ms. Elgar's analyses generally end with real-world advice for HR departments.

Anybody Want to Sue a Law School?

2007-11-19T13:01:00.000-06:00

I'm going to go ahead and assume most everybody reading this either went to law school or works with a bunch of people who did, and the idea that they should be punished for something has probably crossed your mind at least once or twice, right? Admit it.

Well, here's your chance, via Craigslist:

Counsel sought: employ discrim. case against major university
Reply to: [redacted]
Date: 2007-11-11, 3:46PM

I am a law professor who was aggressively recruited by a law school in Chicago for my expertise and to serve a particular program in my area of expertise. The pre-screening was extensive: I was flown in, did a full day interview with a presentation, and my scholarship was reviewed.

Whistles whetted? I'm sure I don't need to tell you the prof. didn't get the job.

One more thing before you click the jump... if you have any specifics about this purposefully vague craigslist post, please do not put them in the comments. We would like to actually become attorneys without being sued for slander or libel or any number of other things that we would have to tell the Character and Fitness folks about. If you just have to get it out, email us.

The job, according to the unnamed candidate at the unnamed law school, went to a minority "nine years out of law school with no publication or teaching experience, and who had not distinguished himself academically while at law school." Well. I never.

The Masked Educator had apparently run the program for a year and did, in fact, distinguish him/herself academically while at law school. Also, according to the prof.:

[T]he law school had major internal issues and actually drove away minority faculty in the year or so preceding my visit, thereby creating their diversity problem. I am told that one person brought a legal action and received a settlement. I can identify the faculty at issue.

So the prof. is seeking representation, preferably on a contingency basis, for a discrimination suit because his/her "productivity fell dramatically," is "no longer in a position to visit at other law schools unless [they] want to explain why [they were] denied a position by this other law school," and their "market appeal has fallen."

Market appeal. Must be nice. Most importantly (to me, not them): "I am not attending professional gatherings in the field to avoid explaining the situation and embarrassment." We've been to those get-togethers. If that gets put in the case, it should really mitigate those damages.

Man. If anyone takes this case, I'm seeing some major drama here in the Chi. We'll keep our eyes peeled. Any tips, EMAIL US. As stated, comments = liability = very short legal careers for the CE staff.

Wal Mart to pay $49 Million More - Official Response: "Meh."

2007-11-14T17:09:00.001-06:00

The latest decision in Wal-Mart's ongoing legal battles with its employees is in, and this one is probably going to increase the legal flies the retail giant will be swatting at in the near future.

A Pennsylvania judge has tacked $49 Million in attorney's fees onto a $141 Million judgment for unpaid overtime against the nation's second largest employer. The plaintiffs (187,000 of them) were awarded $141 Million earlier this year.

This has got to be tough for a retailer that doesn't even like paying its own attorney's full price.

Just based on its two recent wage-and-hour suits, Wal Mart is down about $353 Million, and it is marking a distinct shift in employment litigation, with major L&E firms noting the biggest danger to employers is no longer discrimination, but wage and hour class actions.

Wal Mart, of course, is dealing with both.

On top of this $181 Million, and the California lunch-break judgment earlier this year for $170 Million, Wal Mart is facing two gender discrimination class actions, one of which is currently open to 1.6 million current and former female employees (that makes it the largest civil rights action in history, for anyone keeping score), a suit over its refusal to add birth control to its health benefits, and a bevy of single-plaintiff actions too long to list.

More info can be found on the company's Wikipedia page. The Arkansas giant is appealing all of the judgments, of course, but they're probably not reeling as much as you'd think - Wal Mart's 3d Quarter revenues clocked in just under $3 Billion. Yeah, with a B.

Lawyer Loses Case on Sex Poems? We Are Back in Business!

2007-11-14T16:04:00.001-06:00

Whew – a somber day followed by a day of dead air – we're lucky anyone's still out there. Are you still out there?

Well, we hope so, because CE is returning to its bread and butter today, starting with a cautionary tale coming out of the 1^st Circuit that we had to ignore on Monday.

We'll spoil it for you: if you're going to write love notes to coworkers, don't sue when you get fired.

Until now, we've always assumed British guys in their 60's living in the states could do pretty much whatever they wanted. (Girls go crazy for that accent. It's ridiculous.) Apparently, so did David Bennett. The ex-pat IP lawyer was fired from a corporation in Massachusetts, and he sued for age discrimination, among other things.

The problem was, he was fired for allegedly penning a series of anonymous, sexually-tinged love poems to a coworker. Though he denied writing the poems, he was ultimately implicated because many of the spellings and words were in the King's English, and not our west-of-the-atlantic, bastardized hog-talk. We can only assume this was a way of invoking the bright line rule about girls and accents espoused above. Plus, they hired a handwriting expert, which is an area of science we honestly thought was made up for 80's cop shows and CSI.

The other (read: actual) important thing to remember from the case is that, in the end, it didn't matter whether Bennett wrote the poems or not. From the ABA Journal:

Whether or not Bennett actually was the author was "largely beside the point," the panel wrote. "(W)hat counts is whether the decision-maker ... believed the plaintiff to be the author and, if so, whether he acted on that belief in deciding to send the plaintiff packing."

One last thing - when they asked Bennett if he wrote the poems he denied it, and then he said he had never composed a poem in his life. A search of Bennett's desk revealed a whole collection of other poems in his handwriting. Remind you of anyone? We'll simply repeat our often-repeated plea: Before you file that lawsuit that will cost hundreds of thousands of dollars and take years to fully resolve, THINK ABOUT HOW DIRTY YOUR OWN FRIGGING LAUNDRY IS!

Or don't. This stuff is a boon for us.

Veterans Help In Illinois - An Interview With Vets Clinic Director Ryan Coward

2007-11-12T15:52:00.000-06:00

[ed. note: This one is for us here in Chicago. All the same, many of the agencies and support organizations mentioned in this post have corollaries in your state. A google search of your state and "veteran aid" will get you started.]

It is encouraging to see members of Congress championing these issues on multiple fronts, but after Veteran's Day is over, who will still be working for the interests of the soldiers? And, more importantly, what can you do to help? Let us give you a subtle suggestion:

As we briefly noted earlier, the John Marshall Law School has recently formed a Veterans Legal Support Center with the charge of aiding vets in getting the benefits they deserve.

I recently spoke to Ryan Coward, Director of the VLSC, about the situation and what the Clinic is doing to help. That interview, and what YOU can do to help, appears after the jump.

Current Employment: What exactly is the VLSC? Will the Clinic be able to help vets with employment issues?
Ryan Coward: There are two parts of the VLSC. The clinic will consist of students who are actually representing the vets in front of the VA [for benefits]. They will be supervised by an attorney. There will also be a pro bono network of attorneys. These attorneys will represent veterans not only for their VA claims but also for a number of different issues, including USERRA related issues. So, while the Veterans Clinic solely assists with medical and educational benefits, any vet with a employment related issue will be referred to this pro bono network where they can receive the appropriate representation for free.

CE: Are there any other resources out there for unemployed vets coming back?
RC: There are a number of resources for unemployed veterans coming back. About once a month there is a job fair in Chicago strictly for those that were in the military. In addition to these job fairs, prominent groups in the Chicago area that assist veterans with obtaining employment are: the Helmets to Hardhats organization, the Troops to Teachers organization, and the Veterans Leadership Program which is a non-for-profit which helps veterans obtain employment.

CE: When does the Clinic start taking cases?
RC: The clinic is taking cases officially January 1, 2008. However, we are currently accepting test cases and also actively referring cases to the attorneys within the pro-bono network.

CE: Is there anything specific that vets returning from the current conflict should do to protect their former jobs?
RC: Yes. One important thing veterans should do is always communicate with their employers in writing. They should also keep copies of these communications. USERRA does a great job in helping protect returning veterans so that they can return to their jobs. The problem that some returning veterans have is that their employers simply aren't familiar with the statute. If there were greater awareness about the regulations many of the current issues returning veterans face may never even arise. The good news is that almost all of these disputes are resolvable. When most employers learn that there are certain laws, which they need to comply with, then they are happy to oblige. If for some reason a veteran does continue to have problems, the best organization to contact is the ESGR (Employer Support of the Guard and Reserve).

As Ryan said, for USERRA matters, the VLSC teamed up with the Illinois Supreme Court to match vets with a trained attorney who will act pro bono on their behalf. In order to do this, of course, they need two things some of you can provide: money and licenced lawyers (employment lawyers might be nice, huh?) willing to be trained.

If you are interested in volunteering, visit www.jmvlsc.org or email Mr. Coward at 5coward@stu.jmls.edu. If you would like to donate to the Center, call Scott Kruger, executive director of the John Marshall Foundation, at (312) 386-2806, or email him at 6kruger@jmls.edu.

Vets' Job Problems By the Numbers

2007-11-12T14:21:00.000-06:00

Senator Edward Kennedy and Former Senator Max Cleland had a commentary in the Boston Globe yesterday about veterans' job prospects and the success (or lack thereof) of the government agencies in helping those with problems.

The point of the article, in 50 words or less, is that USERRA is a great law that isn't enforced and therefore isn't helping. They support this idea with data from a recent DOD survey. From the article:

In a 2006 survey, 23 percent of returning reservists and National Guard members who could not find a job said that their previous employer refused to rehire them - as required by the Uniformed Services Employment and Reemployment Rights Act. About 11,000 veterans came home to find that their former employers would not promptly take them back - in direct violation of that 1994 law. Even if they did get their job back, their employers often failed to provide them with full benefits. For example, more than 22,500 reported improper loss of seniority and seniority-related pay and benefits.

Employees who are denied these rights have to choose whether to accept the short stick or fight through an agency process that the Senators said could last up to seven years. That is, if they even know they have the choice.
From the article:

[R]ecent reports indicate that government agencies charged with enforcing the 1994 act are hamstrung by inefficiency and lack of coordination. Almost half of reservists and National Guardsmen who filed a complaint with the Department of Labor reported being dissatisfied with the handling of their case, and more than one-third reported that the department's response was not prompt.

The Senators point out that, on top of the inefficiencies in the process, government agency computer systems can't communicate with each other, so every agency the veteran deals with is isolated to itself. This could make it seriously hard for someone who, say, gets fired because he has to leave for rehab four times a week.

Worse yet, this person may not even know he has any recourse. From the article:

Almost a third of reservists surveyed in 2006 reported not receiving information on their reemployment rights during activation or deactivation. Obviously, veterans cannot exercise their rights if they don't know those rights exist.

So who's at fault here? We tend to agree with Senators - the government has got to do more, and finally giving vets preference in House employment is not enough. Most employers aren't sitting at home thinking up ways to screw veterans. Just like they aren't trying to be racist. Or pay men more than women. It's tough to run a business when workers aren't working, but they're still costing you money, and businesses are usually kept in line by the government enforcing its laws. This is the case for securities regulation, discrimination, pension benefits. But it seems that vets are pretty much expected to protect themselves. The article puts it better than we could:

These brave men and women stood guard for us, so that we can have a better and safer life - a steady job, a home, and a family. They deserve the same.

Veteran's Reemployment Rights - USERRA

2007-11-12T09:53:00.000-06:00

[ed. note: While our goal at Current Employment is always to present this information in as lighthearted a way as possible, sometimes the situation is too important to run the risk of watering it down in humor, such is the case today.]

Since yesterday was Veteran's Day, we're devoting the day to veterans employment issues. Like always, we're not taking sides here, but this is one of the most delicate, complicated issues in modern employment law, so we felt the need to discuss it. This post is a general overview of the Uniformed Services Employees Reemployment Rights Act, or USERRA.

USERRA is meant to protect an honorably discharged serviceman's ability to return to his or her previous job after being deployed or on active duty. There are requirements for both the employer and the employee, and complaints are handled through an administrative agency.

Even with the law in place, the state of veterans returning from wars, both present and past, is not nearly where it needs to be. We'll address some of those issues in subsequent posts today.

Details on USERRA, and a place to go for help, after the jump.

Among USERRA's safeguards:

- Protection from discrimination on Title VII grounds.
- Reinstatement to the position the servicemember would have been in had they not been called to duty. That means if the soldier would have been promoted in the regular course of his employment, he must be reinstated at the higher position (called the escalator principle). If the employee must take a test to be promoted, the test can be administered by proctors stationed where the employee is on active duty, or reasonable accommodations must be made upon return to work, either to train the employee or provide alternative employment opportunities.
- Reasonable accommodation for employees returning with injuries or disabilities. If an employee is convalescing from war injuries, they have up to two years to request reinstatement to their position at work.

USERRA requires the employee to notify the employer of his or her active duty requirement when reasonable, and to give as much time as possible to the employer to prepare. Upon return, the employee must apply for reemployment based on the following schedule:

- If the active service was less than 31 days, the employee must apply on the next working day, excluding time travelling home and an eight hour rest period.
- If the active service is under 181 days, the employee has 14 days from the date they are released from service to apply for reemployment.
- If over 181 days, the servicemember has 90 days from release from service.

With regard to benefits, active servicemembers are eligible for all health and welfare benefits at their jobs back home for 2 years, though they may be required to pay up to 102% of the premiums. Pension benefits are always protected.

If a servicemember has a claim or complaint against their employer, they can take it to the Veterans' Employment and Training Service (VETS). From the Department of Labor USERRA site:

If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant... If violations under USERRA are shown to be willful, the court may award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.

It seems like a pretty comprehensive statute, but, as with many helpful pieces of legislation, reality is standing in the way. The claims that are filed don't seem to be getting resolved effectively, and the result is an terrible amount of veterans unemployed, untrained and homeless.

If you or someone you know is struggling through the maze of benefits or reemployment laws for vets, the John Marshall Law School has established a new clinic that may be able to help. Here's the website. If you need more information, feel free to contact us and we can put you in touch with someone who can help.

Cardinals being sued for posting STD message

2007-11-09T10:45:00.000-06:00

Although this has nothing to do with labor and/or employment I am a big sports fan and just found this interesting.

As many people know, you can, for a fee have a message posted on scoreboard at your favorite teams home stadium. While seeing your name on the same scoreboard as A-Rod, Ichiro, Manny would a major thrill (especially for this writer) for one unlucky fan it has led to a major league size headace.

A 17 year old girl is claiming that the St. Louis Cardinals allowed a message to appear on the scoreboard that falsely implicated the girl had a STD. The 17 year old girl was on a high school field trip when, alledgley, another student text messaged the Cardinals scoreboard operators. The message she texted was, "(A.B.) has an STD! Eww!".

The suit claims that the Cardinals posted the message without regard for the truth of the statement (defamation?????)

The suit seeks damages in excess of $25, 000.

WGA Strikers Blog

2007-11-09T10:35:00.001-06:00

If you're interested at all in the writer's strike, check out United Hollywood, an unofficial blog started by some of the strike captains. There's information about the strike, photos of famous people and comments from strikers on how things are going. Our current favorite:

CHELSEA PIERS, NYC: All Jacked Up
"One guy from our group got hassled by some stockbroker-looking dude who was screaming 'Get back to work! I don't want 24 to be cancelled!' He was serious."

We're adding United Hollywood to our roll (on the right column) in case you forget about it later.

Writer's Strike: Lawyers are Busy, Writers are Solid and Michael Eisner Cares?

2007-11-08T20:45:00.000-06:00

Here's some randoms on the Writer's Guild of America Strike, Day 3:

Entertainment Lawyers can't get off the phone, according to the ABA.

Apparently no one remembers the last writer's strike, so none of the writers know what they can and can't do. The WGA told writer-directors (aka show runners) that they couldn't do any "writing services", and so far they've just gone along with it. But now that the WGA is ordering scripts turned in (so no one does any under-the-table creativity shilling) the questions are pouring into attorney's offices. Plus, the shows have to be replaced, and somebody's gotta negotiate and write up the contracts.

"Hollywood is not Flint, Mich. It's not Allentown, Pa."

The biggest issue facing the picketing writers wasn't the studios so much as the other two unions, the Director's Guild and Screen Actor's Guild, so says Tim Goodman at the SF Chronicle:

The cynical in Hollywood - and that's a town built wholly on the failed dreams of the jaded and the bitter - suggested that the agendas of the members of the three unions were, roughly in this order: "looking out for myself," "getting what's rightfully mine" and "bleep the other guys."

But then, as we previously mentioned, the show runners (directors and writers) joined the strike. And the stars showed up. And the "no-strike clauses" in those union contracts started to look a little thin. According to the piece, there's been an email from producer Shawn Ryan (the Shield, the Unit) "floating around" that kind of summed it up:

I obviously will not write on my shows. But I also will not edit, I will not cast, I will not look at location photos, I will not get on the phone with the network and studio, I will not prep directors, I will not review mixes. I can't in good conscience fight these bastards with one hand, while operating an Avid with the other. I am on strike and I am not working for them. PERIOD.

If you're a network exec, and you expected all these people to be working on scripts and now the people haven't shown up and the scripts are confiscated, you may be a little more willing to negotiate? Hmm? Maybe LA's more like Flint than they'll admit.

"The only real winner here is Steve Jobs. They should be striking up at Cupertino or wherever he is."

The WGA strike does have it's detracters, though. If this is going to sell, we'll need a good villain. Someone get on the phone and see if Michael Eisner's available. He is? Of course he is.

Eisner, the former Disney CEO, was speaking before some "we're all rich enough to think about money" club and said the following:

For a writer to give up today's money for a nonexistent piece of the future -- they should do it in three years, shouldn't be doing it now -- they are misguided they should not have gone on the strike. I've seen stupid strikes, I've seen less stupid strikes, and this strike is just a stupid strike.

Hmm. "Stupid" and "Less Stupid". That joke kind of sells itself. Eisner went on to say the writer's didn't put blame on the right people, faulting the networks instead of Steve Jobs and Apple. Word to the wise: Don't take your financial advice from the guy who recommended Ovitz to the Board at Disney.

McDermott Develops Avant Garde New Tier System - Looks Conspicuously Like Old One

2007-11-08T18:17:00.000-06:00

McDermott, Will & Emery is trying to jump onto the multiple-tier media hayride that Perkins Coie and Chapman and Cutler are enjoying. But the two-tier system actually seems to be well-received and effective for recruiting associates, so in true Big-big-biglaw fashion, McD-W-E tried to do it different and screwed the whole frigging thing up for everybody.

From the ABA Journal:

Instead of giving current partnership-track associates a choice between working more hours for more pay or taking a kinder, gentler approach to law practice at the same highly skilled performance level [what the other firms were doing], McDermott, Will & Emery is planning to create a second team of lower-paid, non-partnership-track associates. They will help handle work such as the deluge of discovery created by modern-day e-mail, reports the Recorder.

Yep. You read that right. MWE's Second-Tier? Contract attorneys. I know what you're thinking - there must be some reason for the second-class, I mean second-tier, system that benefits the associates. This is probably just a way for students of lower schools to work their way in to a big firm job, right? From the article:

Initially, McDermott plans to hire a group of about 15 associate alternates with "good pedigrees" and big-firm experience..."They'll have a status within our structure that's brand-new," says Robert Mallory, a Los Angeles partner in the firm's trial group, noting that the idea is so new that no one knows yet what the lawyers in the second team will be called. "The idea isn't that this will be a training ground. This isn't a path into the firm."

We tend to agree with the commenters, who made the following points:

1. This smacks of "Mommy Track", and could be a dumping ground for minorities and women who have children.
2. This B Team is going to be treated like crap by every ladder-climbing 27-year old who walks in as a summer associate.
3. Although both 1 and 2 are true, if you offered me $120k for 40-50 hours a week, I'd totally sift papers for 9 hours.

The Writer's Strike Not Entertaining, Apparently Serious

2007-11-07T09:30:00.000-06:00

We're going to assume that the basics of the Writer's Guild strike, now in its 3rd day, are apparent to everyone reading, mostly since it's getting more press than the entire UAW 3-way negotiations and strikes combined.

If you don't know what's going on, here's a good synopsis from Reuters.

Upon hearing of the strike, our initial thought was how great the chants were going to be. This was clearly misguided. From the LA Times:

In Los Angeles, striking screenwriters chanted, "Network bosses, rich and rude, we don't like your attitude!"

[sigh] Really? We hoped for so much more. Forgive us for expecting brilliance, but isn't the team from "the Office" out there?

As per usual, the MSM gets stuck on a tangent. Most of the news reports are focusing on the lack of new programming and the big names supporting the strikers (Jay Leno had Kispy Kremes, Eva Longoria had - herself) and walking the picket line like Paul Haggis and Robert Towne. But don't think for a minute that this isn't a real strike, with consequences that go far beyond our ability to enjoy non-reality television.

The LA Times article points out (albeit at the very end) that this strike effects a lot more regular, workhorse, paycheck-to-paycheck writers than it does Oscar winners and millionaires.

Although top screenwriters like Haggis can make as much as $250,000 a week, many WGA members collect middle-class wages and can go months between jobs; the threat of an extended work stoppage could have grave consequences for the industry's lesser lights.

And, unlike most strikers, many writers have other responsibilities on set, like executive producer status (called "show runners") or pod deals where the studio gives them development money that pays administrative salaries. The networks are starting to pull those funds now, which means non-union employees could be laid off as soon as this weekend.

According to Business Week, everyone involved is projecting a pretty drawn-out process here, with no negotiations officially scheduled anytime soon. Teamsters in LA refused to cross the picket line, as did Steve Carell, apparently against Screen Actor's Guild rules (we're putting our celebrity stuff at the end, see?). Amy Pohler joined the SNL writers on the line in NY.

If you are in southern California, and are interested, here is a list of the strike locations.

Job Bored - 11/1

2007-11-01T23:36:00.000-05:00

And you thought those models were going hungry by choice... - MarketWatch.

If his boss hadn't put him on the feminine hormones he could've avoided the cross-dressing and that gay affair. Kind of gives new meaning to "on the basis of sex". - The Guardian.

Atty General: "I'm resigning not because I'm a quitter." No, you're resigning because you owe $3.7 million to the employees you arbitrarily replaced on racial grounds, lost witnesses and dismissed the 2 biggest cases on the docket, then housed an armed robbery suspect in your house. Only in New Orleans. - L.A. Times

Recent Settlements:

B&H Video in New York: $4.3 Million - Gothamist
Chevron: $5.5 Million - San Jose Mercury News
Morgan Stanley: $46 Mil. And no, we're not missing a decimal point. - Investment News

Chrysler Waits Obligitory 5-day Period Between 1st Date and Massive Layoffs

2007-11-01T21:00:00.000-05:00

We're sure you've heard by now that Chrysler is showing its hand after avoiding the GM security promise during its latest contract talks. The now-private company let out that it may cut up to 10,000 jobs.

Not having the capacity or interest (or meager financial support) of official news outlets, we've waited for the story on the layoffs effects on Ford's still-pending UAW negotiations so we can poach it for our own article here.

From Reuters:

Jerry Tucker, a former UAW regional director who lobbied against the Chrysler and GM contracts, said Ford workers may feel a sense of betrayal to a point, but that would not necessarily keep them from approving a contract.

"Ford workers should look at this just the same, that they could ratify an agreement one day and see massive cutbacks the next day," Tucker said.

The analysists seem to be agreeing with Mr. Tucker. Consensus is that Chrysler's layoffs will make it exceedingly difficult for Ford to get the concessions it needs, because now the UAW looks emaciated. It's sitting in the middle of the negotiations with battered union syndrome.

While we wouldn't go as far as some and call this a "death knell" of the old school smokestack union, it is a blow to their status.

From the NY Times today:

Thursday’s additional job cuts could leave egg on the face of the auto unions. As Daimler prepared to sell Chrysler, Buzz Hargrove, the head of the Canadian Auto Workers Union, said that handing the company keys to a buyout firm would be the “worst-case” scenario.

“Our fear is private equity,” Mr. Hargrove told The Washington Post in March. “They are not out to build cars. It could mean throwing a lot of people out of work and then reselling” the company.”

Yet the unions were brought round to Cerberus as a new owner. In a statement announcing the Chrysler sale, the United Automobile Workers’ president, Ron Gettelfinger, said the deal “was in the best interests of our U.A.W. members, the Chrysler Group and Daimler.”

And elsewhere in the Times:

The U.A.W. did not comment. But one dissident union leader, Gregg Shotwell, said Chrysler’s actions threatened to create general distrust and divisiveness within the union.

Union leaders “certainly deserve to be distrusted because they misled people,” said Mr. Shotwell, whose group, Soldiers of Solidarity, campaigned against the versions of the U.A.W. contract that passed at Chrysler and G.M. “This has opened up people’s eyes.”

That idea has Wired News (yeah, we don't know either) saying Chrysler's private equity model will do away with unions entirely:

Cerberus [Chrysler's parent co.] has made noises about profit sharing with its workers, which has been Silicon Valley's preferred defense against unions. And even many UAW workers agree that smokestack unions everywhere are outmoded, inefficient and often corrupt. No doubt, profit sharing is the way of the future.

The big question in the short run is: what does Ford do now? They're arguably the farthest away from a recovery, and now they've got an expiring contract and a Union that's been striking for fun lately but still feels like it's against the wind.

And whose fault is it? Feel free to post your Detroit Diatribe in the comments.

Plea^se S!!tand## By-/...

2007-11-01T12:16:00.000-05:00

Before you email, we know our clever Halloween logo is still up there, even though today is All Saints Day (in our defense, it's also Dia De Los Muertos, but we admit Edgar Allen Poe doesn't exactly fit with Mexican tradition), and we don't have any posts yet today.

[this is where the "technical difficulties" artwork would normally go]

CE's regular locale is experiencing some serious internet deficiencies today which have effectively eliminated our ability to post any links, change any pictures or get any real work done.

Sorry for the inconvenience.

Tim will be at the Argo Cafe on Dearborn and Monroe this afternoon around 2 pm to put up some posts and change the logo, if anyone wants to stop by and say hello.

Fullbright Report: Employment Law GCs' Greatest Concern

2007-10-31T14:46:00.000-05:00

And all the associates deleted their vacations...

Fulbright & Jaworski’s influential Litigation Trends Survey just came out this week, and it has pretty interesting results that shrinking L&E departments should be blowing up poster-sized.

The “we’re-too-big-to-all-be-lawyering”-sized multinational law firm funds an annual survey of in-house counsel in the U.S. and U.K., asking them about their satisfaction with outside counsel and their greatest litigation-related interests. Topping the list of GC’s concerns this year?

You people.

Yep, as reported by Jay Shepherd at Gruntled Employees, the Fullbright Report (our term - we think it sounds official that way) cites employment disputes as the #1 concern of in-house attorneys, with 43% of the vote (contracts, regulatory and securities matters filled out the remainder of the top 5).

When asked about actual pending litigation, the results were the same: L&E followed by contracts, and then all the other stuff.

Also interesting: the stakes, and the number of class actions, are apparently rising considerably. Manpower’s Mark Toth:

More than 50% of companies face at least one class action, compared to only 34% in 2006 and 16% in 2005. In addition, more than 40% of companies now spend more than $1 million annually on litigation and virtually all companies reported having at least one $20+ million lawsuit pending.

So, tell your bosses – if they want to appease their clients, they clearly need to hire more labor and employment attorneys.

Conveniently, we know some interested parties about to graduate law school. Any resume requests can be sent to currentemployment@gmail.com.

Merill's Suits and Golden Parachutes - Could the O'Neill Result Be Litigated?

2007-10-31T10:22:00.000-05:00

By now we're sure you know all about E. Stanley O'Neil's "resignation" as CEO of Merill Lynch. The MSM has taken their normal tack of squeezing the story to death in a "this is horrible - let's move on" kind of way.

Our MSM saturation line for a story is when the Today Show picks up on it. When Jim Cramer suggested Merill not pay the parachute and just wait to get sued, I spit out my cereal.

Maybe he wasn't too far off, though. According to the NYT blog Dealbook, the first institutional investor is challenging the firm's financial honesty, based on O'Neil's "mismanagement" and the resulting $8 billion loss.

The plaintiff, which is seeking class status, is not challenging the parachute right now, but we're interested to see if the case gets its class status and proceeds to the discovery phase. The Dealbook commenters seem to want to challenge the Board's Business Judgment (see, we paid attention in other classes, too). With the right proof, O'Neill could be accused of an Ovitz-like lazy-day approach to his job.

Matt Lauer did say he played a lot of golf last month...

Are You as Happy as a Rolling Stone?

2007-10-30T22:39:00.000-05:00

Just a quick followup to the post a couple of days ago: we found the perfect quiz. Go see if you're happy at work - by comparing yourself to Keith Richards.

See? No joke necessary. Enjoy the quiz.

Who's Running Things in D-Town?

2007-10-29T16:26:00.000-05:00

One of the big-picture things that has been overlooked for the most part during this round of negotiations in Detroit is the fractured results. After the GM deal came in, pundits began debating the balance of interests in the contract, assuming it would be the boilerplate for the other two members of the little-big 3. Now that the Chrysler contract is (barely) a done deal, and offers a lot less job security to the employees, those same brains are starting to wonder if the Ford talks are going to go even farther toward the “look-we’re-trying-to-stay-in-business” talks of the airline industry during the United bankruptcy.

From the NY Times (via Workplace Prof Blog):

Talks [at Ford], which continued at a slow pace during the Chrysler vote, are expected to step up over the weekend. Generally, the U.A.W. expects to win the same contract terms under its practice of pattern bargaining, but as at Chrysler, the union may have to settle on something apart from the G.M. pact. . . .

But nobody seems to note how remarkable this is – the UAW practically perfected pattern bargaining, and now, without fanfare, they’re watching the process fall apart.
Why is this? Is it just that the Big 3 aren’t as comparable as they used to be? Admittedly, GM is farther along in their “restructuring” than Ford or even Chrysler. Or did the GM negotiation – and the debate over the strength of the union at the bargaining table – place Chrysler in a better position to say no this time around? Is that possible, with both contracts coming after strikes for the first time in decades?

Let the armchair analysis begin. Meantime, we are waiting with bated breath for the Ford contract – and the subsequent vote. With Chrysler's less-beneficial contract approved by a narrow margin during some serious in-fighting in the union, we can only imagine the double-overtime action the Ford vote is going to bring.

Pop Quiz, Hotshot!

2007-10-28T11:46:00.000-05:00

We here at Current Employment are constantly making strides in our ultimate goal of turning our blog into a freshman high school girl's Myspace page. To that end, here are some online quizzes on how well you know your employment law:

Atlanta-based Ford & Harrison has a slick-looking quiz here to get you started.

Here's one on tutor2u.com that plays like a midterm - if your law school had midterms.

Baker & McKenzie supplied the information for this NLRA-based quiz, though the website it's on isn't exactly screaiming "multi-billion dollar law firm" or anything.

Think you've got employment law down? None of this a challenge? Try this quiz at XpertHR, a UK human resources site, or this one brought to you by Blackadders Solicitors.

Who's on top now, huh, fancypants?

Any more we missed, feel free to link to in the comments.

Outsourcing Ethics

2007-10-26T20:53:00.000-05:00

Ok, it's Friday night, so this is going to be short.

The ABA notes that outsourcing legal jobs to India is causing all kinds of ethical issues. For starters, the legal education system in India is totally different, and key ethical considerations such as confidentiality are though of differently in India. Couple that with the dearth of oversight on either side of the ocean(s) and you see the problem.

Then there's the fact that Indian lawyers may not actually be lawyers in the states. From the article:

[I]n a number of states here an Indian attorney is not considered a
lawyer for the purpose of applying legal ethics rules...Hence, the American lawyer in charge may be ethically required to adhere to support staff supervisory standards when overseeing the work of an Indian attorney.

The article goes on to say that the Indian legal outsourcing market has grown from $52 miillion in '02 to upwards of $4 billion by 2015. That's a lot of tajtunes.

Look for this on the next MPRE. We swear.

The Job Bored:

2007-10-24T12:50:00.000-05:00

EU seeks to expand job portability by recognizing degrees and skills across borders. EU News and World Report ready with arbitrary ranking system to fill in oppressive educational class structure. - International Herald-Tribune

If you were a "Democratic" Think Tank constantly defending yourself from accusations of being a haven for neo-conservatives, what would you do? Publish an op-ed called "The Myth of Middle-Class Job Loss" in the WSJ. Duh.

"Um, the handicapped spaces are for armless Iraq war veterans/tank arsenal employees with real handicaps. You're fired." - Detriot Free Press.

Looking for a job in real life is so 2005. - Daily Telegraph

$5 Million a year's not insulting. It's the $3 million in incentives that really burned Joe Torre's britches. - NY Times

Outsourcing singing telegrams. Seriously. No joke necessary. - Gatehouse News Service

Big Law speaks...IRS listens

2007-10-23T19:11:00.000-05:00

That collective sigh of relief you heard yesterday came from the community of Executive Compensation practitioners in response to the IRS extension of the 409A compliance deadline for nonqualified deferred compensation plans to December 31, 2008.

They have the Major Firms - and their clout with the IRS - to thank.

Buried deep in the 600 pages comprising the American Jobs Creation Act of 2004 (many like to say that the Act did, in fact, create jobs...for lawyers, HA!), are found 6 pages constituting 409A of the Internal Revenue Code. This section of the Code was passed to regulate the elections, distributions, and notice requirements of the nonqualified deferred compensation plans loved so much by executives. Congress passed this portion of the Act because it did not like the fact that these execs retained so much control with respect to this supposedly "deferred" compensation.

Bringing affected plans into compliance has proved to be no small task, however, because of a lack of understanding and the sheer number of affected plans. And it didn't help that the Final Regulations under 409A were just passed in April of this year. Those regulations required compliance by December 31, 2007. However, practitioners remained hopeful (and confident) that this deadline would be extended as it seemed unrealistic. Then, on September 10th, the IRS teased practitioners with Notice 2007-78, which allowed for a documentary compliance extension to December 31, 2008. Unfortunately, what really mattered, operational compliance, was not extended.

Finally, a letter was sent to the IRS signed by most major law firms asking for a realistic extension to the end of next year. The IRS listened. On Monday, Notice 2007-86 was published and, among other things, it finally extended the deadline for documentary and operational compliance until the end of next year. Until the deadline comes, plans may rely on "good-faith" compliance with the regulations.

Teacher Pensions Teaching Wall Street a Lesson

2007-10-16T15:22:00.000-05:00

Before I started law school, I was an aide at an elementary school. It was a humbling experience. The math and reading was ok, but everything I thought I knew about personal relationships was turned on its ear. My point is, anyone who knows a teacher (hello, Mrs. Galvan!) knows that they teach social responsibility and ethics as much as reading and math (and law).

We were not surprised, then, to find out that the California and New York teacher retirement funds filed amici briefs in Stoneridge Investment Partners v. Scientific-Atlanta Inc., a derivative securities fraud case heard last week by the Supreme Court.

From Education Week:

The California and New York state teacher-retirement funds, as well as some other large state pension funds, filed or joined friend-of-the-court briefs on the side of shareholders. The shareholders are seeking to hold two big companies that were the business partners of Charter Communications Inc. liable for allegedly helping the St. Louis-based cable-TV company in a fraudulent scheme that helped inflate its cash flow in 2000.

The teacher-retirement funds note that they have become some of the most active institutional investors in trying to improve the integrity of publicly traded companies in the wake of Enron and other recent high-profile corporate-fraud cases.

If anyone is going to teach corporate defrauders a lesson, we'd pick the teacher's unions. Not because of the love we have for our teachers, but because they're generally the best-funded, best-invested funds in the public sector.

Click the jump for CE's color commentary.

Another story: in Mississippi, where I spent first grade, every teacher in the school had a paddle. My teacher's paddle was named Charlie Brown. The principle's was named Buster and had holes cut in it for speed and angry eyes painted on the end. The pensions are swinging with Bowser.

The lesson here is more dunce-cap-in-the-corner than get-up-try-again, and it's one the CEOs had better learn. Corporate waste is easy when the shareholders are disjointed and hard to unify. But when three pension funds with billions of dollars invested can hold a 20-minute conference call and decide to dump your inefficient company stock, it becomes a much bigger deal. So, corporations, heads up. The teachers are pissed. And the water reclamation employees and the trash collectors. Regular people rely on you being responsible so they can retire.

In the immortal words of Tyler Durden:

"Look, the people you are after are the people you depend on. We cook your meals, we connect your calls, we guard you while you sleep. Do NOT f*** with us."

Though we hope our honored educators wouldn't use such foul language.

Controversial New NLRB Ruling: Act Only Protects People Who Want Jobs

2007-10-16T11:07:00.000-05:00

The NLRB has limited the National Labor Relations Act's protections to only those job applicants who really want jobs they apply for. This will finally cut out all those independently wealthy jerks who apply for jobs and then turn them down just for laughs.

In Toering Electric Co., 351 NLRB No. 18, the Board said that only applicants with a "genuine interest" in developing an employment relationship with an employer will be covered under the Act. The General Counsel will have the ultimate burden to prove the applicant intended to develop the relationship, and the Board said that he could use receipts from restaurants and movie theaters where the applicant took the employer on dates and witness testimony of hand holding and make-out sessions at clubs as evidence.

Yeah, we made that last part up.

This is really another assault on the union strategy of "salting" that the Board seems oddly obsessed with lately.

As we previously reported, The Board limited salting protection earlier this year, holding that Salts would have to prove they planned to stay after the campaign if they wanted back pay for being let go. In Toering Electric, the Board (though seriously divided) raises the bar for bringing a claim at all, holding that Section 2(3) requires at least a "rudimentary economic relationship" that is absent in true salting cases.

The dissent went to town on that, saying nothing in the Act says anything about a person's motives for applying - that you could be our hypothetical billionaire above and the NLRA should afford you the same protection as anyone else.

The big problem we see here is that the Supreme Court unanimously held that salts were protected under Section 2(3). If this trend in the Board continues - we see a trip to the Big House coming soon - and with the Supremes walking with their new gangstar lean, the Board may find the support they're looking for.

Let us know what you think in the comments.

Current Employment Goes (Pale) Green!

2007-10-15T15:45:00.001-05:00

The guys were going to join in the Blog Action Day festivities by writing a big post on qui-tam actions under the Federal Claims Act and their viability as stop-gaps in environmental protection. Then the Saints won last night and now all I've got is this list of resources for environmental whistleblowers, which they think is still realy responsible:

Workplace Fairness Env. Whistleblower FAQ
Bush Administration Ruling Throws Cold Water on Environmental Whistleblowers
Government Whistleblower Pages:
- OSHA
- EPA (scroll down)

Finally, a website we HIGHLY reccommend: Public Employees for Environmental Responsibility (or, PEER to their buddies). This group is a service organization that, among other things, lets public employees speak out with the benefit of anonymity. To see why such an organization is needed, go to the "campaigns" section and take your pick.

We'll be back tomorrow with less socially-conscious posts. Maybe we'll focus on union busting or ESOPs or something.

Supreme Court: Whining, Country Cookin' and Celebrities

2007-10-12T11:45:00.000-05:00

In our recent post on how overly concerned the Supreme Court seems to be with old people, we pointed out that there were a few other employment cases this term that didn't have anything to do with those along in years.

While that's not exactly true (see below), the cases present a couple of age-neutral issues, parties, bigots and other tabloid-ready topics worth considering, and a judge/justice SCOTUS celebrity showdown that will blow your mind!!

Descriptions after the jump.

CBOCS West v. Humphries.
As a preliminary matter, we note this post is being published in the N.D. of Ill. so we'll take our cues from the 7th Circuit's opinion and refer to CBOCS by it's Christian name, Cracker Barrel.

We tried to skim the questions presented to sum up the case, but somebody must've read the brevity suggestion for SCOTUS questions. From the petition:

QUESTIONS PRESENTED:
Is a race retaliation claim cognizable under 42 U.S.C. § 1981?

What kind of question is this? They better have good orals, 'cause Cracker Barrel is definitely not winning best brief this term.

The 7th Circuit opinion summarizes the case pretty well: Humphries was an assistant manager at Cracker Barrel in Bradley, IL (go Boilermakers!) And, after the store manager who liked him left, they apparently brought in a temporary manager from the early 19th century. From the Circuit Op.:

According to Humphries, Cardin [the mgr] routinely made racially derogatory remarks, such as stating that all African-Americans are “drunk or high on drugs” or that “all Mexicans have a bunch of kids.” Humphries alleges that other employees confirmed Cardin’s inappropriate comments, and told Humphries that Cardin had stated that he was there “for the white people” and was “going to take care of the white people.”

Humphries was fired, of course, and claimed it was in retaliation for bringing the manager's actions to the attention of the district manager. When his Title VII case was dismissed, the district court granted summary judgment on the 1983 claims, holding that retaliation isn't an option under section 1983. The 7th Circuit reversed, and now here we are.

Sprint United Management v. Mendelsohn
Ok, so we said these cases didn't have anything to do with old people, we were speaking from a purely academic point of view. Ms. Mendelsohn, is, in fact, an old person. But the question before the court is not about her underlying ADEA claim (she got riffed and claimed she was picked because of her age) but the fact that she wasn't given a fair trial because the trial court wouldn't hear "me too" evidence

"Me too" evidence is the hilariously juvenile nickname (we're waiting for the "nuh-uh, stupid" evidence debate) given to testimony from fellow employees who experienced similar discrimination (in this case, during the reduction-in-force) though not necessarily by the same manager or under the exact, same circumstances. Introduction of this type of testimony has actually been a pretty hotly-debated issue in discrimination cases.

Preston v. Ferrer
Ok, this case is not necessarily an employment case, though the result will definitely have implications on L&E law, because it involves federal preemption under the Federal Arbitration Act. That substantive importance, however, has nothing to do with our interest in this case.

The "Ferrer" in the caption is "Judge" Alex Ferrer, more commonly known as "Judge Alex" to anyone in college, raising small children or sick from school. The other guy, what's-his-name, is Ferrer's former manager. If ever there was an unfortunate and sordid relationship leading two individuals to the Supreme Court, this is it. From Preston's attorney's press release:

Alex Ferrer is a former Florida District Court Judge, who now makes his living on television, arbitrating petty legal disputes.

Arnold Preston is a Florida attorney, who once practiced before Judge Ferrer in Miami. In 1999, Mr. Preston left Florida and took a job with the William Morris Agency in Beverly Hills, California. Recalling Judge Alex Ferrer’s charisma on the bench, Arnold Preston introduced the Florida jurist to the top agents at William Morris. When Arnold Preston left William Morris to become a talent manager and television producer in 2002, he became Judge Alex Ferrer’s manager.

The two had a falling out, of course, and Mr. Preston is trying to arbitrate commissions he is allegedly owed. Heartbreaking.

Current Employment is reading right through this. We think the Supremes are merely trying to capitalize on their involvement in the media high-point that was Anna Nicole, though we hope they're planning some kind of judge-on-judge Iron Chef-style showdown where Judge Alex gets to pick a justice to opine against (we say go with Alito - he's new and seems easliy flustered).

At the very least, we hope the Roberts Court will adopt a minimum c-list celebrity standard for future terms. We'll keep you posted.

Law Firm Seeks to Clear its Name by Suing Partner, Airing Laundry.

2007-10-11T00:10:00.000-05:00

Another day, another law firm debacle to report. First it was Sidley Austin's ostentatious settlement earlier in the week. Now Ballard Spahr's Baltimore office has apparently brought itself into court for discrimination.

From the Daily Intellegencer (via Law.com):

After attempting to resolve internally alleged issues of inequitable pay and the piecemeal removal of her practice over the course of a decade, Jane Ennis Sheehan had confidentially presented on May 9 gender discrimination claims and a demand letter to Ballard Spahr Chairman Arthur Makadon through her counsel, according to court documents from both sides.

Sheehan claimed that another partner who was supposed to be her equal in a two-person team took her practice from her over the course of several years and called it his own. That partner was ultimately paid more for doing the same work, she said in her demand letter.

She also claimed in the letter that she was retaliated against for bringing these claims to light internally, eventually resulting in her being taken from a percentage or equity partner to an income partner.

We know what you're thinking - another equity-to-income post? Yawn.

Come on, we wouldn't do that to you. This is not big-firm economics. This is straight up she-said/it/they/he-said, David versus Goliath-style mud-wading. But Goliath is supposed to stand there and get pelted, not throw his own stones. For an explanation, click the jump.

After a conference call to work out the details didn't produce, the firm sued Sheehan asking for a declaratory judgment that they did not discriminate, before she ever went to the EEOC on the discrimination claim. Again from the article:

"I wanted to keep it as discreet as possible. I never expected a suit by the firm," Sheehan said in an interview. "I expected an opportunity to sit down and discuss my concerns with the firm.

[Sheehan's lawyer] said Ballard Spahr did "everything wrong" when it came to dealing with an internal complaint, whether or not it agreed with the allegations. She said Sheehan wanted to keep the claims as quiet as possible, but the firm ultimately "advertised the suit" to the partners.

"It's interesting that I could raise the specter of discrimination claims and find myself the defendant," Sheehan said.

And elsewhere:

"I kept hoping incorrectly that things would straighten out," Sheehan said earlier.

Sheehan said she is still working for the betterment of the partnership through marketing the firm's practices and the Baltimore office, which now has 41 attorneys.

Yeah, we're pretty sure when the firm refused to pay us the measely $675k and reinstate our partner status, we'd get the itch to walk, but to each her own we guess.

Maybe there's an explanation in here somewhere -

In its response to Sheehan's preliminary objections in the declaratory judgment action, Ballard Spahr said Sheehan had explained her poor performance and low billable hours through a 2004 letter to the allocation committee. She said the reason for the performance was because of personal problems that affected her work life, according to Ballard Spahr's response filing.

Sheehan said in an interview that the firm encourages partners to write letters to explain poor performance. While everything in her letter was accurate, Sheehan said, she did not bring up some of the professional reasons that her billable hours were low because she "did not want to antagonize the partnership," she said she thought she would suffer ramifications she wasn't ready to handle.

"Antagonize the partnership?" Oooh-kay. CE is not setting the odds for this one.

One more quote from the article:

In 2004, Sheehan earned $358,681 for her share of the partnership profits. She said in court documents that that was 82.3 percent of Casey's pay for that year, which would mean he earned almost $436,000.

So we're not losing that much sleep over Ms. Sheehan's situation. Though CE thinks getting your hard-earned business snatched from under you is pretty crappy regardless of your gender or year end take-home.

Either way - we can't figure out what Ballard was thinking with this. They just hung the dirty laundry and expected eveyone to walk by without smelling it. I mean, when no one's calling you a sexist, don't ask the court to say you're not a sexist. That's all we're saying.

This just in! - Unoriginal Chrysler Employees Walk Out!

2007-10-10T15:59:00.001-05:00

This was just posted a few minutes ago....I thought it was relevant, being from Detroit and all.
http://biz.yahoo.com/ap/071010/auto_talks.html?.v=21

Somebody should've told them striking is so last month.

More info when we get it...

Arbitrator: Falcons can recoup $20 Million from Mike Vick

2007-10-10T15:11:00.000-05:00

The legal saga that is the life of Michael Vick has taken a turn for the worse, just when the troubled superstar athlete thought things couldn’t get worse.

Having recently failed a drug test which could affect his sentencing in connection with his conspiracy conviction; Special Master Stephen Burbank, a U of Penn law professor and arbitrator, ruled that the suspended Atlanta Falcons quarterback must pay back close to $20 million dollars in bonus money to the team.

Vick, Special Master Burbank ruled, funded the now infamous “Bad Newz Kennels” with proceeds from his huge $130 million dollar contract.

In a departure from one of his earlier rulings involving former Denver Bronco wider receiver Ashley Lelie Special Master Burbank stated, that the money that could be recouped was for future services. In the Lelie ruling, Burbank stated that the money that the Broncos could collect was only signing-bonus money for players deemed to have breached their contract.

It is surmised that since Vick is suspended and will likely be headed to jail he cannot perform on his contract and has breached it, thus allowing the Falcons to recoup their losses.

"We are certainly pleased with today's ruling by NFL Special Master Stephen Burbank," the Falcons said in a statement.

"It is the first step in a process that our club has undertaken in an attempt to recoup significant salary-cap space that will allow us to continue to build our football team today and in future years."

One thing this does immediately for the Falcons is it allows them to pursue free agents, because the money owed to Vick is now off the books, for salary cap purposes. Although it remains to be seen, how much, if any, money Mike Vick has left. Just a few weeks ago a Canadian Bank filed a lawsuit against Vick claiming he defaulted on a $2.5 million dollar loan.

The NFLPA (the players union) said they will appeal the ruling.

“THE PRICE IS WRONG????”

2007-10-10T14:32:00.000-05:00

We all remember the opening….the late great Rod Roddy, in his sequence suits (I want to know where I can get one of those things) would yell out a contestants name…..”Joe Blow, c’mon down, you’re the next contestant on The Price is Right”….and like mad the contestant would run front and center to “contestants row” to play crazy games for huge prizes.

Of course the man overseeing all of this action is one of the greatest actors of all time - Bob Barker. (That’s right I said actors. And Bob Barker. Ever seen Happy Gilmore? The price is wrong, B***H.) For millions of us, staying home sick from school meant we got to watch The Price Is Right. No matter what ailed you, TPIR always made you feel better, and if you are like I am, you genuinely liked Bob Barker, almost like a grandpa.

Deborah Curling, however, is not like you and me. She is a former employee of the Price is Right who recently filed a lawsuit against Bob Barker and other producers claiming, among other things, that she was sexually harassed over an extended period of time.

Curling claims that because she testified on behalf of another employee who was suing TPIR, that Barker and the other producers sexually harassed her and created a hostile work environment. This is not the first time the 83 year Barker has been sued. There have been several former employees, many of them the models that display the products and prizes, that have sued Barker, alleging sexual harassment. Many of those cases were settled out of court. Curling cited those cases in her complaint.

We here at Current Employment take this kind of thing very seriously, and will continue to follow the developments in this case. At time of press, CBS had no comment regarding the lawsuit.

For more info on this story click here for a link http://news.yahoo.com/s/nm/20071005/us_nm/barker_lawsuit_dc_2

Supremes October Term Blatantly Discriminates Against the Young

2007-10-09T21:20:00.000-05:00

The 2007-2008 Term is officially in full swing, so we thought we'd better do our blogitory duty and sum up the Supreme Court's October Docket for you.

We were a little worried about this term. There's been all this talk about the Roberts Court being more interested in business cases, but before last Tuesday the Court had only granted cert to two employment cases, which is pretty low. On 9/25, however, the Supremes tripled their employment-law workload, bringing the total up to seven. That may still seem low, but it's actually a lot compared to past sessions.

We've pored over all the records [read: scanned BNA summaries* while drinking] to bring you as in-depth an analysis as possible, and one thing is very obvious about the new Supreme Court: they are really, really worried about growing old. (Maybe send a gift with that Petitioner's brief?)

An explanation and the case summaries is after the jump.
[*BNA Labor Report - subscription req'd.]

With three employment cases having something to do with the Age Discrimination in Employment Act, and an ERISA case about who can sue for botched 401(k) investments, the Silver Set is definitely taking center stage (for employment cases, which means "far-left stage past the bathrooms" to everybody else).

There's Kentucky Retirement Sys. v. EEOC, a 6th Circuit case that mashes the ADEA, pension benefits and state public employment into one giant mess. This one could be big - the question presented:

Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

Federal Express v. Holowecki involves whether an "intake questionnaire" and affidavit submitted to the EEOC can be considered a discrimination charge under the ADEA even when the aged discriminitee didn't mean it to. Administrative procedure is obviously the coolest area of the law, so we're sure this will get tons of press.

Gomez-Perez v. Potter asks whether the ADEA prohibits federal employers from retaliating against employees who complain of age discrimination. What? This is a question? Apparently - the 4th Circuit held the ADEA doesn't protect federal employees like it does private ones. Plus, it's not like the government feels the need to live up to its rules for the private sector in other areas... God, it never stops sucking to work for the government, does it?

The term's token ERISA case is a potential barn burner - LaRue v. DeWolff, Boberg & Associates will settle the question of whether the totalitarian regime that is ERISA allows an employee to sue for losses based on his employer's failure to carry out his 401(k) investment instructions. The case got interesting when LaRue moved to dismiss after the Court granted cert, noting that the plaintiff took all the funds out of his 401(k) while the case was pending at the circuit court. The amici came out of the woodwork, and the Court recently denied the motion. For real, keep an eye on this one.

There are two other cases - Sprint/United Management v. Mendelsohn and CBOCS West v. Humphries - that raise game-changing issues in evidence and retaliation, and a state/federal jurisdiction case that is hiding an eminent judicial figure. Since none of them have anything to do with old folks, and this post is getting so dang long, we'll save these three cases for their own post later today.

Finally, the Court denied cert. in Jennings v. Dorrance, the discrimination case against the UNC soccer coach filed by former players. That sends it back to the District Court for trial. It's title IX, which is outside our purview (or interest, honestly) but we knew we'd get emails if we didn't put it in here.

Fee Disclosure Legislation = Increased Fees

2007-10-08T14:21:00.000-05:00

[ed. note: Chad DeGroot is our employee benefits editor. Please be nice to him, because none of the rest of us understand or want to write about this crap.]

On October 4th, Representative George Miller (D-California) introduced a bill in the House seeking to increase transparency with respect to participant-directed defined contribution plan fees charged to participants. The bill essentially requires plans to disclose to each participant every fee charged to their accounts. Failure to properly inform participants would result in a $100 fee per participant, per day of noncompliance for the plan. Not only will this effort not result in a reduction or limitation on the fees participants incur, but it may result in an increase in those fees that were previously seen as unreasonable, or force those plans with relatively high fees to maintain that level.

Because of the increased administrative costs associated with an increase in disclosure, plans will be able to justify current or increased fees. One such administrative cost is going to be borne by HR departments trying to justify the fees to aggravated, uninformed participant-investors.

You think fee litigation has been on the rise as of late? Watch out.

If participants are going to see a reconciliation of the fees charged their accounts, and can understand such disclosure, there is inevitably going to be an increase in the already-saturated field of fee litigation. Much of this new litigation is going to be frivolous, and accomplish nothing but the clogging of overburdened courts and, of course, greater fees. The increase in potential liability and litigation is just going to act as another point on which a plan can justify not only leaving fees at their current levels, but may, in fact, require an increase.

Furthermore, not only will this legislation have no affect on the current fees, unless it provides grounds for an increase, but that which must be included in the disclosure is going to be complicated and convoluted to a point where the average participant will not even read it, or if they do decide to attempt the impossible, not understand it. A similar loophole has been exploited by companies in issuing proxy statements.

Many fees may currently be at inappropriate levels, but increasing the required amount of disclosure to participants is not the answer.

NLRBU is Not a College, and Other Things We've Learned.

2007-10-07T14:23:00.000-05:00

As promised in an earlier post, here's some background on the NLRB/Union dispute (whose latest battlefield has been Chicago), mostly gleaned from Bob Gilson's articles on FedSmith.com and Jeffrey Hirsch's posts on the Workplace Law Blog. (links to these sources are at the bottom of this post).

Wow. In our defense, this whole thing started before CE was a glimmer in our bleary, hungover eyes, but still - how did we not know about this?! This story has everything - federal agency fights, lawyer bickering, Press Release Wars, Giant Rats - this is hollywood-caliber stuff (tell us Richard Riehle would not kill as GC Meisburg).

Ok, so here's the juice, based on all the google searching our fledgling staff is currently capable of:

On March 14, the FLRA issued a decision consolidating the four bargaining units represented by the NLRBU for collective bargaining purposes. The units were separated by office (DC and satellite offices) and by which "side" of the NLRB they worked for (General Counsel or the Board). The NLRB had argued against the consolidation, claiming Section 3(b) of the NLRA separated the GC and Board offices, and therefore the units must also be separated.

Then, on June 25, General Counsel Meisburg sent a memo to agency employees explaining (and we're paraphrasing, here) that he felt in his heart of hearts that the FLRA had made a terrible mistake, and sadly he was forced, obviously against his will, to refuse to bargain with the union in order to bring the matter before a federal judge. Then the memo let out a big sigh and one lone tear... A press release was issued three days later. The memo/press release explained that the FLRA decision was going to get in the way of 40 years of really good bargaining between the NLRB and its union. It also contained a quote from the GC that is worth repeating, as you will surely want to reference it a couple paragraphs from now:

I want all of you to know that my decision to test certification is rooted in my firm conviction that maintaining the independence of the General Counsel is fundamental to the functioning of this Agency.

Seriously, remember that line, and click the jump. We promise it's worth it.

In appropriate fashion, sometime in early July, the union responded, pointing to the well-reasoned (if poorly-worded - grammar check, maybe?) FLRA decision, which analyzed congressional history and the passage of section 3(b) and concluded the independance of the sides was not in jeopardy by the consolidation. It also pointed out that the the bargaining units had been "speak[ing] with one voice on virtually every topic that is addressed without any compromising of the GC’s prosecutorial prerogatives." Oooh, dang.

The union said that the GC's been bargaining with both sides for 25 years or so, albeit unofficially, and it hasn't seemed to bother him before. In fact, we noticed in the FLRA decision (yeah, we read it) that the policy of each side's negotiators is typically to run agreements by each other, so Board-side employees don't get casual fridays while GC-side employees are stuck in suits or vice-versa.

Plus, according Jeffrey Hirsch at Workplace Law Blog, the past 40 years of negotiations have not been so rosy:

It is perhaps a well-known secret that labor relations between the Board and its employees have long been troubled. When I worked there, negotiations over a new collective bargaining agreement got so bad that the union picketed in front of headquarters.

Okay, go back and read that Meisburg quote again. We think somebody's fibbing!!

Anyway, GC Meisburg lived up to his word on refusing to bargain, which sent the union into something of a tizzy. In August it picketed in DC (accompanied, of course, by another press release). We're not sure where, but we're hoping it was in front of NLRB headquarters, becasue that would be clearly the awesomest place. Not content to walk around in circles with signs, the union ramped up its rhetoric big time. From the release:

National Labor Relations Board Union members today carried informational picket signs and distributed leaflets demanding the resignation of National Labor Relations Board General Counsel Ronald Meisburg. The Union alleges that Meisburg, a presidential appointee whose term ends in 2010, has engaged in conduct that shows defiance of Federal Law and contempt for the rights of his employees.

Yep. They're demanding he resign. Awesome. We read that last little bit as the pr version of that tried-and-true campaign ad tactic: "this guy you don't know is total buddies with this other guy you hate." (Thanks Professor Boynton)

The release also promised pickets at random places where Meisburg would be attending. We know they threatened to picket the Jersey regional NLRB office on their 50th Birthday in September, but the Jersey office cut off their celebration to avoid the scene. Other than that, all we know is that they were outside the University Club on Thursday.

Ok, clearly the NLRB thinks that consolidating the bargaining units will cause a complete breakdown of the congressional separation of the GC's office and the Board. How one leads to the other is, um, not exactly clear. Plus, according to the union's first press release, this whole debate is over less than 40 employees. Put all that together, and this seems like agency grandstanding to us (and Jeffrey Hirsch). But the NLRB is right - its only recourse if it was actually worried about the legality of the decision is to force the FLRA to bring a ULP against it and take the thing to court, and Bob Gilson seems to think the FLRA has been muscling its way around other federal agencies for a while now.

So which is it? Is the NLRB just using the only avenue available to it, or is this just a urinal swordfight between big- and little brothers? You tell us, in the comments.

Jeffrey Hirsch's Posts:
Labored Relations at the NLRB - Workplace Law Blog
NLRBU Response to NLRB's Test of Certification

Bob Gilson's Posts:
Did I Miss Something or Did FLRA Recently Declare NLRB Unable to Understand a Unit Issue?
NLRB v. FLRA: Round Two Coming Up
NLRB V. FLRA: NLRB Union Pickets and Exchanges Press Releases with Management in the Ongoing Dispute over FLRA's Decision
Picketing, Hyperbole and the National Labor Relations Board

How Many Years Does it Take for a Partner to be a Partner? The World May Never Know.

2007-10-06T10:29:00.000-05:00

Earlier this week, Sidley Austin settled its lawsuit with the EEOC, pulling the plug on the burning-hot spotlight they've been under, but sadly offering no precedent on the plight of literally hundreds of other old, wealthy lawyers.

The EEOC investigation goes back to "Sidley & Austin's" 1999 "demotion" of 32 "partners" to counsel status, booting them from sharing in firm profits. The firm claimed it made the decisions based on performance (Profits per Partner are a key indicator of firm health surveys like the AmLaw 100), but the EEOC brought a claim alleging the move violated the ADEA, since most of the partners were in their 50s and 60s.

The fight between the agency and the law firm has garnered ridiculous amounts of attention in "Biglaw" circles, since a final judgment could either affirm the current corporate model used by most big firms or mandate a complete structural readjustment of billions of dollars in compensation. In the least, firms were eyeing their mandatory retirement policies with veins popping out of their sweaty foreheads.

With the settlement, nobody knows if partners are employees or if mandatory retirement is even legal - as with most settlements, both sides are using it to show how right they were all along.

For comments from both camps, click the jump.

From Law.com:

Sidley agreed that the affected partners were employees subject to the ADEA only "[f]or the purposes of resolution of this matter." But the decree does not constitute a finding on the merits of the case. Nor does it require the firm to admit any wrongdoing. Sidley said on Friday the settlement was strictly a business decision. "The Firm believes that settling this case is preferable to the costs and uncertainties of continued litigation," Sidley said in a statement.

So, clearly the settlement could not set any type of precedent, right? It's not like Sidley made any explicit concessions or anything.

Mark H. Alcott, a partner at Paul, Weiss who called for the end of law firm mandatory retirement policies ...said the size and public nature of the Sidley settlement amounted to an "explicit concession."

Oh. Well, whatever. The mandatory retirement debate rages on - the ABA just weighed in against the policies in the latest ABA journal.

What we care about is the drama (and intellectual discourse regarding the definition of "employee", of course). This is, after all, the government toeing up against one of the biggest law firms in the land. But regardless of Sidley's high-profile status in the legal community, it's still an "employer" right? So what's so weird about the EEOC challenging an "employer"?

Well, for one thing, usually the agency waits until an employee asks them to get involved. Here, none of the "partners" ever contacted the EEOC (some of them even bowed out once it was clear the agency was looking for payroll records, according to the Law.com article). And usually "employees" and "partners" aren't exactly synomous terms.

But that's a story for another time. Stay tuned. We'll post about the 7th Circuit cases and the "employee"/"partner" fight real soon...

We Didn't Realize the NLRB was THAT Management Friendly...

2007-10-04T09:30:00.000-05:00

Getting off the bus to get to work this morning, there was a giant, inflatable rat outside an office building in the loop. This is not that unusual (especially here in the Chi), it just means a union is striking outside a job site.

Some things about this particular strike seemed odd, though. For one thing, the picketers were in collared shirts and slacks - some were wearing suits. We don't know of any unions with strike-wear dress codes (though there may be something to that...). Then there was the fact that the strike was outside the University Club building - which is a typical breakfast meeting/cle event locale for attorneys...

Then we noticed the signs - "NLRB: Practice What You Preach."

That's right, folks - the National Labor Relations Board Union is currently picketing the NLRB for failure to recognize it as a certified bargaining unit. Right now, all we've got is the strike flyer, so our information is understandably one-sided (and scant)[ed. note: see updates below]. But we have an email in to the Union directors and we're going to try to contact someone at the Board to get a reaction.

Here's what we know:
[ed. note - see new post here]
- This appears to be a national issue - the flyer quotes Ronald Meisburg, the NLRB General Counsel, as saying "I am refusing to bargain over conditions of employment." (which, whoa - hopefully not, you know? That's pretty much the ballgame)
- The FLRA did apparently certify a bargaining unit, and they did issue a ULP against the Board (that's irony, right?) - according to the union flyer.

If there's something else you know - or want to know - put it in the comments or email us, and we'll get on it.

[UPDATE: 10:23 am] - A little google searching led us to this Press Release from August that we think is the foundation for today's activity. Apparently the NLRB Union petitioned the FLRA to combine some previously separate units, which it did. Then GC Meisburg emailed employees saying he wouldn't bargain with the newly combined unit. The union picketed (we think in New York) in August. The Release goes on to promise more:

Union sources said this would not be the last demonstration demanding
Meisburg’s resignation. They indicated that the Union has plans to picket
at other public events Meisburg attends and will continue until he either
resigns or agrees to obey the law.

So is that why they're at the University Club? Is GC Meisburg gracing us in the Windy City with his presence? Looks like we may have to crash a party or two this morning...

[UPDATE: 11:44 am] - Ok. We've been doing some digging, and it seems like maybe we're a little late to this party. The Union's picketed in a few places, and caused the New Jersey regional office to cancel its 50th Birthday celebration in September by promising to picket Meisburg's presence at the event. Bob Gilson at FedSmith (where we found the Press Release) has a series of articles explaining the history of this sordid, labor law love-triangle, which is 90% assured of making its way into court. Needless to say, we're on pins and needles.

Expect a full post on this mess later in the day.
[UPDATE: Ok, so later in the day actually means four days later or so, but here's the promised post, for those still interested.] Any more updates on today's picketing will be tacked on here.

The text of the strike flyer appears after the jump.

Here's the Text of the Flyer:

National Labor Relations Board
Refuses to Obey Federal Labor Law

On August 19, 2007, the Federal Labor Relations Authority issued an unfair labor practice complaint alleging that the National Labor Relations Board violated its obligation under federal labor law to bargain with the National Labor Relations Board Union, the union of NLRB employees, in the bargaining unit certified by the FLRA.

NLRB:
- Refuses to recognize the certified bargaining unit of its own employees
- Refuses to bargain with the Union
- Ignores FLRA decision
- Violates federal labor law
- DISRESPECTS ITS OWN EMPLOYEES!!

NLRB General Counsel Ronald Meisburg, the chief enforcer of the National Labor RElations Act, told its employees, "I am refusing to bargain over conditions of employment." He has told employees that he will not obey the federal labor law. He has said that he will refuse to bargain with the Union in the bargaining unit certified by the FLRA.

The NLRB is violating the law by refusing to bargain with the Union. If the NLRB does not honor the rights of its own employees, how can employees count on the Board to protect THEIR rights?

WE DEMAND
THAT THE NLRB OBEY THE LAW AND
BARGAIN WITH THE UNION!

NATIONAL LABOR RELATIONS BOARD UNION

Updates will come before the jump.

GM - UAW Reach Tentative Deal

2007-09-26T10:05:00.000-05:00

We're gathering information right now - but here's what we know:
1. Most importantly for both sides, the auto workers are going back to making cars this morning (thanking God, probably, that they aren't going to be living on 200 bones a week for the next 6 months.)
2. GM has an official statement that the agreement is finalized, and...wait for it... it looks like there's a VEBA! We knew it! Not on the table our ass.

No more healthcare costs for GM (minus that hefty up-front contribution). Interesting. Does this mark a Womakian shift in Detroit? Everyone seems to think the other Big 2 are going to jump in ASAP. Plus, what does assuming 50 billion in healthcare responsibilities mean for the Union? Does this create solidarity or itnernal strife?

We'll keep updating this post throughout the day, as we learn more. In the meantime, discuss in the comments.

UPDATE [10:32 a.m.]: We got emailed that some people wanted an explanation of a VEBA. We scoured the web for one that wasn't written for IRS auditors (i.e.: BORING), and found this fascinatingly well-composed description on the Hopkins k-12 School District Website. We did the math, and CE started learning about VEBAS in 20th Grade. Apparently that puts us at, like, 7th-grade in Minnesota. Kudos to you, libertarians!

UPDATE [9:15 p.m]: Details are trickling out finally - looks like not only did GM catch up to the Minnesota primary education system, they're also getting the 2-tier salary structure they asked for - down to the dollar. From now on, temp and non-manufacturing workers will start at $18/hour, down $10 from the previous contract.

A lot of people seem to think the UAW is calling this a "victory" way too soon, citing a bunch of unanswered questions (like where the 38 bil will come from to fund the VEBA), and that the union is using the short strike to make this a win, when they did all the conceding. If the NY Times is correct, CE agrees:

In return [for taking over 50 billion in healthcare costs] the union won
guarantees that medical benefits for hourly workers and retirees and their
families will remain in place for the next two years. G.M. will also invest
money in its American plants, and will maintain its current union work force of
73,000.

Won? The union "won" that? So the UAW takes over the next 80 years' worth of healthcare costs in return for a promise by GM to keep making cars. If we didn't know it was the UAW, we'd be worried this was adhesion. No such luck - the CE prognosis: the union caved. Hard. Discuss in the comments.

Huh? Wha?

2007-09-24T23:23:00.001-05:00

Seriously, you turn your back for two months...

We know we promised you a full report on the UAW negotiations on the 24th...of July. In our defense, CE had to work out a few administrative details (see here) that took a little longer than expected. All of the sudden it was the 62nd day of the UAW negotiations, and we were sitting around talking about the Second Amendment or some other arcane, unused law like nothing was going on. Honestly, it's not like they're actually negotiating at the moment, so maybe we just saw this coming and didn't want to waste space on the boring parts. All the same, we're a little embarrassed.

Not as embarrassed as, say, Rick Wagoner's gonna be if this strike thing keeps up. Honestly, did anybody realize the UAW still knew how to strike? Of course, each side is blaming the other for the stoppage, but that's not the interesting part of this story.

According to the New York Times, GM is in a much better position to handle a strike now than it has been in the past, but that's really bad news for the company. Confused? We were. For the Times' analysis, and some more stellar CE commentary, keep reading.

First, how great is Rick Wagoner's name? That guy was born to run a car company.

Anyway, according to production guru James P. Womack, this strike is some kind of watershed moment, marking a change for better or worse in Detroit. He says that though GM has backed away from "defining moments" in the past, someone this time finally said enough's enough. Ok, first: backing away from "defining moments" just shows that GM is still the leader of the American Auto Industry. Plus, as the Times article points out, the car company hasn't done anything yet, and it has a, um, "spotty" track record of standing up to strikes. From the article:

In the past, its response, by and large, was to cave in to U.A.W. demands. That happened during the last big walkout, at two parts plants in Flint, Mich., in 1998. That seven-week standoff occurred when Rick Wagoner, the current chief executive of G.M., was president of its North American operations.

(What does this guy have a 10-year itch or something?)

G.M. never recovered the 31 percent market share it held before the strike, and was forced to offer rebate deals to get customers back into showrooms.

“G.M. has made deal after deal that didn’t deal with fundamental problems,” Mr. Womack said. “This time they have to hold the line on a contract.”

"Hold the line"? Yeah, we may not hold our breath. G.M. has about 2 months of reserves to hit the market - not exactly going to get the dealership guys their Christmas hams. Oh, also: the Times article fails to mention that Womack is the chairman (and founder, apparently) of the Lean Institute, which advocates Toyota Production System application to American industries. While there's nothing wrong with that, we're thinking he may have a little bias in defining those "defining moments".

Regardless, it's the other issue here that has the CE staff buzzing like a Halo 3 Mountain Dew Big Gulp: The link between GM's financial difficulties and its negotiating ability. Again, from the Times piece:

G.M. is better positioned to handle a strike now than in earlier contract talks, though not for reasons that have to do with strength. With its operations shrinking in the United States, the majority of its sales and profits are now coming from abroad.

It is selling more vehicles built in Canada, Mexico, and Europe, the source of new models for its Saturn division. And it is rapidly expanding production overseas, especially in China, which is fast becoming one of the world’s major car markets.

The company’s problems at home, which resulted in losses of more than $12 billion in the last two years, have forced it to close all or parts of a dozen factories, cut tens of thousands of jobs and offer deals to workers to quit or retire. A smaller G.M. means there are far fewer workers involved in this strike, so a halt in production inflicts less pain on the company.

The U.A.W. membership at G.M. has shrunk by more than 80 percent since the 1970 strike, when 400,000 workers were off the job for 67 days.

So, GM falls flat on its face financially, which ends up benefitting its bargaining ability and the bouyancy of its bottom line.* When you view this in the light of GM's major goal in this negotiation, the VEBA it hopes will rescue it from the pensions** of the UAW workers, a cycle emerges that is worth some discussion. Since we make it a point not to take sides, the rest of this topic belongs to you - in the comments.

Talks Continue in G.M. Strike
*Intentional alliteration

One last thing - This VEBA has not gotten much attention (alas, ERISA issues never do), so we're promising you a whole post on G.M.'s VEBA proposal and its potential effect on the situation in Detroit...once we track down our Benefits guy. They're so antisocial in the ERISA department...

**UPDATE: Did we say "pensions"? We meant "health and welfare benefits". Thanks to the tipsters for pointing out our mistake - and we reserve the analysis of the value of our education for another discussion.

Please stand by...

2007-07-24T11:39:00.000-05:00

The CE staff is a little bogged down at the moment - we know it's day 2 of the UAW talks, but let's be honest, day 1 was just pictures and gland-handing and a little spouting off by the union to get in the papers first (looks like it worked).

We're sure Bill Ford didn't see it coming.

Seriously, we promise, there will be a post soon. Sorry about the wait.

The 7th Circuit - Obsessed with Sex?

2007-07-23T13:41:00.000-05:00

Discrimination, of course. Get your minds out of the gutters, seriously.

Honestly, though, a quick Westlaw search pops up 5 pretty salacious cases in the past 30 or so days for the Honorables over on Dearborn Ave. (Well, 4 salacious and 1 Indianapolis case about equal pay for park rangers, but we'll take it.)

The most noteworthy of the bunch, if only for the press, is clearly Bernier v. Morningstar, the best urinal-gazing case we've seen since we started typing bathroom terms into Westlaw as 1L's.

In what will surely find its way into emp. disc. classrooms as a "why did any attorney take this case" moment, Todd Bernier sued his former employer, Morningstar, Inc. (the investment firm), for sex discrimination and retaliation. Why? Because another guy on his floor, who he knew was gay, apparently kept eyeing him. First it was subtle stares in the hall, but what pushed it over the edge for Bernier was when the coworker made "an overt, purposeful and glaring look" at Bernier while they were in adjacent stalls in the bathroom.

Of course, Bernier did what any self-respecting business professional would do - he ignored his company's discrimination policy, and in lieu of confronting the coworker directly sent him an "anonymous" instant message over the company's computer system that read "Stop Staring! The guys on the floor don't like it." Genius. Espcially considering the real reason the coworker's "overt" stares was a lazy left eye.

We're not kidding.

More on this and another recent decision below. Click the jump.

The coworker took the IM as a clear sign of discrimination against him, followed the discrimination policy, and after, what I'm sure was about 8 minutes in the IT department, they found out the anonymous message came from Bernier. Bernier denied sending it, got fired, and filed an EEOC claim stating his termination was retaliation for notifying his employer he was discriminated against.

Honestly, never in our lives have we wished more that we made the trip across the street to hear oral arguments. The case was heard by Posner, Easterbrook and Wood. Judge Wood wrote the opinion – CE's guess is because Posner and Easterbrook both tried, and their computers exploded under the weight of the commentary.

Needless to say, Bernier went away empty handed – the court determined Morningstar was not put on notice by his anonymous IM to a gay coworker, and therefore couldn’t have retaliated against him.

Poor guy. Should’ve just used the stall.

--------------

Earlier last week another sex discrimination opinion came down, again on the side of the employer, but this one was plain old "fired for being a woman" brand. In Hossack v. Floor Covering Associates of Joliet, a woman sued her employer after she was fired from her job as an office manager.

We tend to think - at least in our beloved 7th Circuit - the first few lines of the opinion are going to tell you where the ruling's going to go. Hossack's started like this:

"Plaintiff...had an extramarital affair with a fellow employee...while working..."

Yeah, that's not going to end well for you.

Seems the Plaintiff and a co-manager of the store, both married, had been cavorting while on the job and she was claiming that she had been discriminated against because they fired her and kept him.

We won't make any calls on the wisdom of the ruling (there's some debate at CE's dinner table over this one). Our favorite part is the testimony of the owner of the company when they asked him about company policy:

Defense counsel asked [the owner]: "Are you aware whether any employees have had a romantic relationship while employed at Floor Covering Associates of Joliet, Inc.?" To which [the owner] replied: "Yes sir, I am." He thien went on to explain that: "I'm aware that in the Joliet store today of 17 people over the past number of years there have been 12 employees or more - 12 employees that I know of who have had romantic relationships with other employees."

12 of 17?! For real? Screw Match.com - the Joliet FCA store has a 70% success rate! Spread the word!

In case you're worried about retaliation for your dallience - don't. Remember, the court found in favor of FCA - and noted that the owner "stated that none of these employees had been fired or disciplined because of engaging in a romantic relationship."

That's all for today - pleasure doing business with you.

Bernier v. Morningstar
Hossack v. Floor Covering Associates

Wal Mart 2, States 0: Suffolk County, NY Fair Share Act Shot Down.

2007-07-19T16:12:00.001-05:00

How will all the destitute residents of East Hampton afford their hospital stays?!

Ok, that's a cheap shot, we know. There's plenty of places in Suffolk besides the Hamptons. Still, seems an odd place for championing healthcare reform to us, but what do we know?

Anyway, remember the Maryland Fair Share Act? Sure you do. It was the "pay or play" healthcare law that would've required Wal Mart and other enormous retailers (so, just Wal Mart) to pay a specified amount of their employee's health benefits or pay into a State-run subsidy program. Remember how it was crushed, like a bug on the ERISA-preemption windshield, by the 4th Circuit?

Well, the bug-juice seems to be leaking onto New York. It's first Fair Share attempt just got shot down, apparently using the same arguments the Retail Industy Leaders of America used to win in Maryland earlier this year.

Roy Harmon explains what happened over at HealthPlanLaw.com.

The big deal now, according to Paul Secunda at Workplace Prof Blog, is what happens to the Massachusets universal healthcare plan. According to Secunda:

I am now more interested to see if the Massachusetts universal health care plan suffers the same fate. The best thing going for that law is that apparently RILA doesn't believe it causes the same harm to its members as the Maryland and Suffolk County law and has not yet challenged it on ERISA preemtion grounds.

If the only difference between the Fair Share Acts and the Massachusetts UHC plan is that RILA hasn't bit yet, then we're in for a serious fight. RILA's press release doesn't make it sound like they're too afraid to go again. The Fair Share provisions are definitely a big piece of the Massachusetts puzzle. And with other states like California possibly signing onto the Massachusetts mantra, this could get real interesting real fast.

Harmon agrees, focusing on what these decisions mean for any law trying to tax an employer for healthcare coverage under the RILA rulings' interpretation of ERISA preemption:

The idea appears to be that, so long as the tax is not imposed on ERISA plans and does not explicitly suggest a connection with such plans, some form of “pay or play” regime may be imposed on employers as a part of healthcare financing. After Retail Industry Leaders Association v. Fielder, — F.3d —-, 2007 WL 102157, C.A.4 (Md.) January 17, 2007), however, these proposals deserve careful reconsideration.

While [previous decisions] give good reason to believe that lawmakers may impose surcharges on patients or providers, the Fourth Circuit opinion in the RILA decision ... poses a substantial risk to any notion that States may look to employers to supply healthcare financing for State healthcare programs. To the extent [the Court] abandons “literal textualism” and looks to the Congressional purpose of ERISA’s enactment, little can be gleaned that would suggest that ERISA will peacefully co-exist with a multiplicity of State-based employer tax regimes dedicated to the funding of multiple State healthcare programs.

- Another Fair Share Law Bites ERISA Preemption Dust

- RILA Takes Out Another “Pay Or Play” Mandate Through ERISA Preemption Challenge

- NY Opinion - via RILA website

- 4th Circuit Maryland Opinion

NLRB: Less "Of the Earth", More "In the Wound"

2007-07-19T13:06:00.000-05:00

The NLRB has changed its rules to disfavor “salting” campaigns. Shocker, we know.

But to do it without being asked, in the headwind of a still-young Supreme Court decision protecting salts under the NLRA is pretty ballsy, you have to admit.

Salts, of course, are the much-maligned folks that seek employment at non-union shops for the express purposes of unionizing the company’s workforce. They have the protection of the NLRA, according to the Supreme Court (well, the old one at least), but now the Board has changed the burden of proof in cases where companies refused or fired a salt. From now on (if that phrase is ever applicable to the NLRB), if a salt is going to get back pay for a company’s refusal to give him a job, his union will have to prove that he was planning to stay after he was done, ahem, “seasoning”.

The salting process is typically thought of like this: the union assigns a salt to a particular company. The salt then applies to the company, who either hires him or turns him down. If the salt gets hired, he attempts to unionize the company’s workforce and then moves on to another company as assigned by the union. If the employer refuses to hire a salt, or fires him when they find out why he’s really there, the salt files a refusal-to-hire or unlawful discharge claim with the NLRB, bringing the company’s non-union stance into the fore.

It is deception at its greatest, as far as most non-union companies are concerned. But to the unions, salting may represent their only real chance to gain access to a closed shop.

So, here’s the situation – When an employee is fired, or wrongfully refused a job, he or she is entitled to backpay for the period starting at the employer’s unlawful act (the firing) and going until the act is remedied, usually by an offer of reinstatement. The presumption was that, if hired or retained, the employee would have continued working at the shop for an indefinite period of time. The burden is squarely on the employer’s shoulders to prove why that isn’t the case.

In ’95, the Supreme Court held that salts are protected employees under the NLRA. That means that refusing to hire one of them, or firing one of them, should carry the same consequences as any other employee, right? Here’s where we pick up our most recent Board decision, already in progress:

The Board, in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, decided that – for salts – the backpay presumption just doesn’t work. According to the Board, “rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer.”

The majority (it’s a 3-2 decision) admits that there are times where a union could leave a salt in his position after the salting campaign, but claims that it should be the union’s job to prove it – not the employer’s to prove the salt would leave.

What’s the problem with all of this? Well, according to the dissent, the biggest problem is that nobody asked the Board to reconsider the issue. So, in the face of a Supreme Court decision, and without prompting from any of the parties, the Board has turned 180 degrees in its treatments of salting campaigns. It’s telling that, in referencing the Supreme Court’s holding that salts are people too (to paraphrase a little), the majority makes it clear that SCOTUS displayed “considerable deference accorded to the Board's interpretation of the Act”. I was trained in my labor law class to take this as a sign to the Circuits that they should reconsider the issue. Is the Board trying to fire a case up to the Supremes now that their ranks have shifted?

So, now here’s the question – is the change in policy justified? Given the nature of salting, isn’t it better to presume the employee is temporary? It is a pretty big burden on the employer to prove a negative, but they still have to do it in wrongful discharge cases of non-salt employees, so is that really a good justification for the change?

Oil Capitol - via Law Memo

HEADS UP: Wage Garnishment Changes

2007-07-18T11:48:00.000-05:00

[ed. note: Any time we find something that might be of note to employers or practicioners we'll do our best to put it up here. We'd really like to have a catchy title to accompany all of these snippets, but the clever engine's not turning over for us today. If you've got a good label, title, etc. drop us a line. In the meantime...]

Heads up to Illinois employers - the State's changing wage deduction rules.

The Governor’s getting a piece of proposed legislation on his desk this morning that would alter post-judgment enforcement. The changes notably include:

- Removing the judicial discretion in wage-deduction orders – deductions would automatically be the lesser of (a) 15% of the weekly gross income or (b) the amount of net income above 45 times the current minimum wage (which just went up to $7.50).

- Allowing judgment creditors the option of taking conditional judgments against employers who stop deducting wages without a valid excuse, but the bill would also require creditors to certify the remaining balance in garnishment proceedings before the employers are obligated to pay.

- Changing the employer fee from either $12 or 2% to just 2%. No option.

If the bill gets signed it will go into effect Jan. 1, 2008.

Illinois Senate Bill SB0229

So it begins...

2007-07-05T16:10:00.000-05:00

I have been trying all day to figure out how to appropriately open CE's doors - what first post would really capture the purpose and importance of what we're trying to do here, and I had come up with zero. Then the Chicago Tribune did all my work for me.

Right on the front page of the Business section was this article. It details how the Senate's energy bill (requiring all vehicles to average 35 miles per gallon by 2020) may be the final straw for a few key truck- and suv-manufacturing plants. According to the article, the current law has different requirements for cars than for trucks and suv's.

The thing that struck me was that the UAW is supporting an alternative measure in the House that would raise the corporate average fuel-economy rating to 32-35 mpg by 2022. A little better, right? Wrong, say the workers at the plants that might close. They produce a product that currently gets 16 mpg. So even the plan their union supports wouldn't keep them in their jobs.

The article outlines some workers and former workers - all of whom are supplementing their income. One guy installs solar panels, but says business is "kind of slow". A retired employee is working at a food processing plant, where he makes $15/hour. "A far cry from the $27 that GM paid."

With negotiations between the UAW and the Big 3 looming, does anyone think the issue of fuel economy will even have a minute's worth of debate? Probably not. Plant closures are nothing new these days, and there are a lot of other issues that will take precedent at that table (retiree benefits, anyone?). So, what about this article makes it opener-worthy? Well, nothing - on it's own.

It's just that, for some reason, the Trib posts its almanac and obituaries in the inside pages of the Business section. So, right across the page, as I'm finishing the UAW article, tucked away on page 3, in tiny font, is the following:

ALMANAC, published July 5, 2007...
In 1935 President Franklin Roosevelt signed the National Labor Relations Act, which authorized labor to organize for the purpose of collective bargaining.

Hmm. It has been a long 72 years since the NLRA came into being. Now, the unions are finding themselves conceding hard-won benefits to their employers just to keep the businesses - and in the case of the UAW, the whole industry - afloat. It seems every modern movement, from globalization to universal healthcare to, apparently, environmentalism is affecting the Union's (capital U) chance for survival as an effective way to do business. The future of the labor movement is unstable, and creative solutions are few and far between.

Is the movement in flux? Or is this the end of an experiment that began with that Almanac entry? Our best attempt at finding answers starts here, in the comments. See you there.

Chicago Tribune: M.P.G. bill could cost UAW jobs
Almanac - July 5, 2007

Get with the Program!

2007-06-25T14:06:00.000-05:00

Are you an attorney, union rep, professor or anyone else with an eye on the labor market and something to say?

Current Employment will be looking for articles, blog posts, inside tipsters, informants, snitches, and anybody who can lead us to current job-related law issues, particularly in the Chicagoland area. If you've got something to say (or just something you want us to say for you) drop us a line @ lels.admin@gmail.com and tell us about you/it/whatever.

Can't wait to hear from you!

this is only a test...

2007-06-25T14:01:00.000-05:00

UNDER CONSTRUCTION.

This blog will open up sometime late summer/early fall. We will have posts from practicioners, students and academics from every side of the political and ideological spectra on topics as wide and varied as the practice of labor and employment law itself.

We will discuss traditional labor, harassment and discrimination, benefits and compensation, and current/pending cases. So, stay tuned!

And pardon the mess - nothing on this blog will look like this when we open**. Just reserving the space until the bells and whistles can be decided on.

Thanks!

**Update-- Ok, we've edited the page. This is pretty much how it will look when we open. If you don't like it, you can let us know in the comments.

Disclaimer Explanation

2005-01-01T00:00:00.000-06:00

Current Employment is a labor and employment blog founded by a few guys when they were students at the John Marshall Law School in Chicago, Illinois. It was originally conceived as an official publication of the School, via its Labor and Employment Law Society, and its "staff" consists mainly of very hard-working JMLS students.

We love John Marshall. We love its old building that used to be a department store or a men's club, depending on who you talk to. We love the school's commitment to night classes and part-time students, and its founding principle of giving every hard-luck dope who's willing to bust their ass a chance to prove they're worthy of the Bar. We love the professors. Mostly. Point is, we think our JMLS education puts us (at least) on a level playing field with any kid throwing his tassles at Columbia or Yale or Michigan. But law schools are cautious institutions, especially those with an unfortunate ladder to climb.

We think a good publication can be both smarmy and smart, and we see a great distinction between irreverence and irrelevance. But we know that schools can't always afford the luxury of risk, and it was important to us for posts and comments to be disseminated quickly and with the least amount of editing or censorship possible. More importantly, as was pointed out by a Dean that we greatly respect, student organizations have profound institutional amnesia, and we couldn't bear to leave our baby in the hands of an undeserving second generation that would run it into the ground. For these reasons, the editors and contributors, who happen to be John Marshall students and alumni, decided that it would be in their best interests to run the blog outside the academic context.

So we are on our own, adrift in the legal community for the first time, really. Go easy on us, huh? It's not like we went to Harvard.

Sincerely,

The CE Staff