Jottings By An Employer's Lawyer: Labor & Employment Law

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Labor & Employment Law

Jottings By An Employer's Lawyer

By an experienced Texas Labor and Employment Lawyer.
By Michael W. Fox, Esq.

Post Frequency: 3.1/day

Last Entry: February 03, 2020 at 15:08:00

OSHA Ends the Year With a Bang and a Black Corvette

Posted on December 31, 2009
It's as good a way to close the decade as any. When Brocon Petroleum failed to pay an agreed judgment that had been entered in a 2008 lawsuit against the firm by the Department of Labor, federal marshall's seized a 1992 black corvette at the home of Richard Kohler, president of the company...

Guess Who Is Crossing the 50% Line?

Posted on December 30, 2009
Although it is the holiday bowl season, I didn't mean 50 yard line. The 50% refers to an article in this week's Economist that within the next few months women will become a majority of the American workforce. See, We Did It!When it actually happens it will only be the continuation of incremental change, but it is as good occasion as any to take note, and consciously reflect, on what it means...

Latest on NLRB Nominees

Posted on December 28, 2009
Jeffrey Hirsch at Workplace Prof Blog has the latest development on the nomination that is holding up the confirmation that would bring the NLRB to full strength (5 members) and make it officially an "Obama Board." The nomination of Craig Becker, a lawyer for the SEIU, has been "returned to the White House," according to some post-Christmas reporting, Becker's Nomination "Referred Back" to White House...

Weighing In On Religion in the Workplace

Posted on December 23, 2009
Although Iowa's turn in the political sun won't roll around for at least another 18 months or so, there's an interesting post from Patrick Smith at the Iowa Employment Law Blog, Are Employee Religious Freedoms in Jeopardy? The jumping off point for his comment was a guest column in the Des Moines Register by Lake Lambert III, Professor of Religion at Wartburg College, in Waverly, Iowa...

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An Argument Against the Arbitration Fairness Act

Posted on December 22, 2009
Even as one segment of the employment community, defense contractors and sub-contractors with large contracts, have lost the right to have arbitration agreements as a condition of employment, a summary of a recent law review article makes what it calls the "not so popular" argument in favor of such clauses...

So You Think Your Fantasy Football Team Is Doing Bad

Posted on December 18, 2009
Odds are that you have not been fired for it. Not the case for four employees at Fidelity Investments, whose office is apparently located in my neighborhood. Rob Radcliff at Smooth Transitions has the complete story, Fantasy Football Firing, complete with a poll of Fort Worth Star Telegram readers on whether they think the company over reacted...

A Pre-Cursor to the Arbitration Fairness Act Takes Another Step

Posted on December 17, 2009
The Arbitration Fairness Act, which would ban the practice of making agreement to arbitration a condition of employment, is not likely to be voted on until sometime in the spring of 2010. However, those in favor of arbitration in the workplace can not be pleased by the survival of the Franken amendment to the Defense Appropriations Bill which bans such agreements by defense contractors...

Joint Commission and Bullying

Posted on December 15, 2009
If you have ever worked in or around hospitals, you know that two words that get everyone's attention are, Joint Commission. That's a shorthand description of an accreditation review that is a top to bottom scrubbing of every facet of an institution, with serious consequences if you don't meet the standards...

Labor and Employment Comes (Slowly?) Into the Electronic World

Posted on December 15, 2009
In looking at commentary on yesterday's granting of cert in City of Ontario v. Quon (more about that follows), I found a reference to an interesting law review article by William A. Herbert, Deputy Chair and Counsel for the New York State Public Employment Relations Board, provocatively titled, The Electronic Workplace: To Live Outside the Law You Must Be Honest...

MDV the Malicious Prosecution Way

Posted on December 11, 2009
There are a myriad of ways that employers end up in front of a jury. One of the less frequent, but as seen by the result, no less dangerous, is a case for malicious prosecution. They usually arise like the facts in a federal court in Virginia last week...

Google and Legal Research

Posted on November 18, 2009
Someone else may have caught this before him, but my hat tip on Google's entry into legal research goes to Eugene Lee at California Labor Law, Google Offers Caselaw ... for FREE. Google comes out with tons of new offerings and not all of them last, so who knows about this project, but given what they have accomplished in other areas, probably worth keeping an eye on...

Wrongful Termination North of the Border

Posted on November 17, 2009
Canadian employment law is substantially different from that in the United States. David Doorey's eponymous workplace law blog is one that I follow just as a means of staying somewhat abreast. His post today,Is a ?Consensual? Relationship Between a Manager and a Subordinate Cause for Dismissal? points out a couple of ways the laws of the two countries vary...

Congratulations to Workers' Comp Insider

Posted on November 17, 2009
Congratulations to Workers' Comp Insider for being named as Lexis Nexis Workers' Compensation Law Center's top workers compensation blog for 2009! A copy of the Lexis Nexis announcement is here.The folks at Lynch Ryan have been posting tremendously insightful and helpful information since September 2003...

More Government Talk: This Time to Your Employees

Posted on November 17, 2009
That's what will be happening if the GAO's recommendation issued last week takes place. While studying how OSHA's Records Audit Process could be improved, one of their recommendations is that the Secretary of Labor "require inspectors to interview workers during records audits, and substitute other workers when those initially selected are unavailable...

A 5th Circuit Nugget for Assault Claims

Posted on November 14, 2009
Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone...

Wage & Hour: Not Just Collective Actions Anymore

Posted on November 14, 2009
Wage and hour compliance issues remain one of the potentially most dangerous areas for employers. Most of the attention has been focused on collective actions brought by a new generation of plaintiffs' lawyers who frequently focus on only those types of claims...

Can the NLRB Function With 2 Members?

Posted on November 02, 2009
Well obviously only in a very limited manner, and according to the DC Circuit, not at all. Three Circuits, the 1st, 2nd and 7th say it can, and now the Supremes will tell us. Justices to decide validity of two-member NLRB decisions. Currently Obama's three Board member nominees have passed committee muster, but John McCain has placed a hold on one of the nominees, SEIU attorney, Craig Becker...

5th Circuit On Continuing Violations

Posted on October 28, 2009
Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R...

Apologies, Both Past and Future For Not Posting

Posted on October 08, 2009
Posts have been exceedingly light recently as I have been both getting ready for vacation (which of course means posts will be non-existent until my return) and have spent the last several days preparing for and testifying yesterday before the Senate Judiciary Committee against overturning the Gross v...

The Employment Law Case That Just Keeps On Going

Posted on September 30, 2009
Lawsuits that stretch out over the years are not all that uncommon, but the tale that started with a discrimination law suit that was settled in 1997, just had another major development, a $4.9 million dollar malpractice verdict against the attorneys who represented the initial claimant in her earlier successful malpractice claim against her original attorneys...

EEOC's Year End Rush - 2009 Version

Posted on September 28, 2009
Ross Runkel comments on recent litigation activity at EEOC announces 32 suits in past seven days. Although I don't know the numbers in recent years, I do know that there is always a rush to file lawsuits by the EEOC before the government year ends on September 30th...

Bullying: The Movement that Keeps on Trying

Posted on September 25, 2009
David Yamada and I have very different view points on whether or not a bullying cause of action should exist (he drafted the model act that has been offered in a number of legislatures), but he is always a good source for monitoring what is going on and I take what he says seriously...

A UK/USA Split - Protection For Those Over 65

Posted on September 25, 2009
The British High Court has apparently just held that mandatory retirement at age 65 is permissible. 65 all out??.. �.That's where the U.S. statutory protection, the Age Discrimination in Employment Act, started; but two amendments later, it has no upper cap.

The Obama Board - EFCA Is By No Means the Whole Deal

Posted on September 14, 2009
The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing...

Did Kennedy's Illness Prevent EFCA Passage?

Posted on September 11, 2009
That seems to be what Senator Harkin was saying in yesterday's report in The Hill,Harkin: Kennedy?s illness stopped card-check vote back in July. According to the story, Harkin had an agreement supported by organized labor and with Kennedy would have had the 60 votes, but Kennedy was too ill to come to capital hill to vote...

Employees in Limbo Land - EEOC Challenges the Solution

Posted on August 31, 2009
One of the great dilemma's for employers are employees who go on long term leaves of absence. Absent some sort of policy that puts a deadline on how long that leave can be, I have seen employers with untold numbers of individuals who may or may not still be employees...

The Perks of a (Lifestyle) Blogger

Posted on August 30, 2009
When I started this venture more than seven years ago, maybe I should have chosen my topic more carefully. Although who could have predicted what blogging would become: Blogger Test Drives An automaker is interested in providing vehicles for bloggers to test drive for a few days and to write about the experience...

The Latest On EFCA

Posted on August 28, 2009
The folks at EFCA Report who have been chronicling developments on this proposed legislation have their latest update, with some fairly definitive words from Senate Majority Leader Reid (D-NV) on EFCA: "Too Many Other Things on Our Plate". Of course, since the statement was made to the Las Vegas Chamber of Commerce, not a place where a pro-EFCA comment would likely be well received, it might be one of those statements that is subject to change...

Social Media and the Employer

Posted on August 24, 2009
There is nothing startingly, or even really new, in this Q & A from the Birmingham Business Journal, What impact do you think the proliferation of online social media will have on human resource policies and employment law issues?. Although I must say it is going to be a brave employer who follows this advice, no matter how legally correct it is:Employers must have a written policy against using recreational social media at work...

A Different Form of Health Plan

Posted on August 21, 2009
I am, as always it seems, behind on reading other blogs. And so probably the last thing I needed was to add another to my google reader list (a fairly recent change since Microsoft said it was no longer going to support onfolio, my all time favorite)...

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