NOLA construction company popped in harassment case

A jury has awarded $451,000 in damages against Boh Brothers for male on male sexual harassment. This case was litigated on behalf of plaintiff by the EEOC. Previous post here.

Bankrupt and rejected

In Burnett v. Stewart Title, Inc., the federal Fifth Circuit Court of Appeals (New Orleans) has joined the Third Circuit in holding that Section 525 of the Bankruptcy Code does not provide a cause of action against private employers who engage in discriminatory hiring practices against debtors in bankruptcy.

Final ADA regulations

Then EEOC has issued final regulations implementing the ADA Amendments Act.

Mandatory drug testing in the Sunshine state

Florida's newly elected Republican Governor Scott has issued an executive order mandating drug testing for new hires and random testing for many current employees. It has the ACLU and public sector unions squawking, and likely is going to draw a challenge to its constitutionality. But the real problem is that it is expensive, and while many employers swear by it, many others found the small number of positive test results called into question the benefit of testing. Drug testing has its place where there is sufficient reasonable suspicion to pass constitutional muster and in the situation where an employee has caused injury to person or property.

Wage Hour targets grocers

A Bunkie supermarket has been fined $35,000.00 by the Department of Labor for employing minors under the age of 18 in occupations the government deems hazardous. The Birmingham office of the Wage/Hour has announced an enforcement initiative targeting small grocery owners and franchisees in Mississippi and Alabama.

Politics as usual

Here is a really informative analysis of the issue of whether unions are disproportionally exempt from Healthcare reform. (They are not).

Formality rejected

In a divided opinion, (Breyer) the Supreme Court has decided that a written complaint is not a necessary prerequisite to a retaliation claim under the Fair Labor Standards Act. The Court refused to decide whether the complaint must be filed with  a court or the government, (as dissenters Scalia and Thomas urged) because the Employer did not raise the issue in its Petition for Certiorari. Nevertheless, much of the reasoning in the majority opinion would support the position that an internal complaint would also be protected by the anti-retaliation provisions.

Wrong

The NFL owners are meeting in New Orleans today. This Times Picyune story captures an important concept - the owners mindset is "the players are on strike, we want to negotiate." But that is not the case. The owners locked out the players. The players vaporized the union placing the controversy in court where antitrust law might be a bit of a problem for the owners. Commissioner Goodell's letter to the players also drew a heated response from players, particularly the part calling the players back to the bargaining table. After decertification the union is no longer authorized to represent the players.

Lets get ready to rumblllllllllle!

A state court judge in Wisconsin has issued a temporary restraining order preventing (at least temporarily) the new law eliminating public sector collective bargaining from taking effect. Wisconsin has become ground zero in a battle between labor and Republicans that will have lasting implications on a national scale.

More than one Cat's paw

Charles Sullivan at Workplace Prof Blog has an excellent post on why Staub v. Proctor Hospital may not be so plaintiff's friendly at all. We agree as our previous post suggests.

Wage payment suit allowed

The Louisiana Third Circuit Court of Appeal has just handed employee plaintiffs a small victory in their wage payment claim. The employees resigned, started a competing business and solicited customers of their former employer. The employer successfully sued the employees in a Texas federal court and were awarded a $1,430,000.00 judgement for damages for breach of fiduciary duty. The employees had filed a claims for unpaid wages and bonuses. After receiving the federal court judgment, the employer filed an exception of res judicata, which was granted by the trial court. The Third Circuit analyzed the record anc concluded res judicata did not bar the employees wage claims.

Saints players react to labor issue

Mike Triplett has a great piece in the Times Picayune about the Saint's players comments on  the breakdown in negotiations for the new CBA. Saint's quarterback Drew Brees is quoted as are many others. The PR war has already started, but these Saints provide an articulate defense to the players position. A word of caution to the fan following this issue. Network reports on the lockout have every reason to be biased in favor of the owners. Not only do they owe the owners $4 billion if the games are not played, they have to negotiate television rights with those same owners. Expect the owners to get better than even treatment and coverage.

Sacked! and the clock runs out

Surprised? I am. Expired collective bargaining agreement, decertification and probable lockout. No disrespect to the tragedy in Japan, but this is a metaphorical tsunami that can well damage all concerned. I think going forward it will be very difficult for the owners in both a court of law and the court of public opinion. The NFL/NFLPA Collective Bargaining Agreement expired because the players would not agree to extend it unless the owners provided the financial information the players had requested. The big sticking point in the negotiations is the owners insistence their costs have risen necessitating taking a second billion off the top of the revenue pie. (The owners want to take $2 billion of the roughly $9 billion in annual revenue generated by the league, before splitting the rest under a formula that provides roughly 60% to player compensation.) Yet the owners are only offering to provide limited access to financial information. This sounds like the typical discovery dispute - one side provides documents requested by the other side and after the production, the requesting party says it needs more. The real issue is hard to assess. Irrespective of the merits of what was produced and whether it was sufficient, I think owners will have a difficult time convincing anyone they provided all the financials the union needed.

Two minute drill

The clock is ticking on the expiration of the extended collective bargaining agreement between the National Football League (NFL) and the National Football League Players Association (NFLPA). Current deadline is tonight at 11:59 p.m. USA Today has an interesting, if bare bones assessment of what could happen. My bet is on another extension. The players have signaled their willingness to talk - there has been no talk of a strike. The owners have rattled the lockout saber thereby assuming the roll of the party willing to walk, but really? This labor/management dispute plays to labor's strengths. Highly skilled athletes bargaining for more. Billionaire owners wanting to increase their guaranteed slice of the estimated 9 billion dollar golden goose that is the NFL. It does not hurt the players position that the owners want a $100% increase in their guaranteed slice off the top. This dispute plays out against the backdrop of the fans. Who will they blame if Sundays from August to February (and a few Mondays, Saturdays and Thursdays too) are devoid of action, or if the only action is by replacement players? I think thats an easy call if the owners lockout the players. Nevertheless a lockout has the same potential economic consequences for the players as a strike, and they are all adverse. No pay, no benefits, and potentially a lost season for players who have precious few years to play anyway. The owners should be gleeful the players threaten to decertify the union (actually a disclaimer of interest that would lead to decertification). It allows the owners to back off the lockout position and continue negotiations, at least at this point. Decertification likely will likely place all of this in a courtroom, a consequence which should be feared more by the defendant, because the teams, as defendants in an antitrust action have a potential dreadful downside. I think the owners should be very concerned about American Needle v. NFL, which rejected the owners argument that the league by necessity had to act jointly in marketing decisions. Yeah, that may be a simplistic analysis, but the case firmly rejected the NFL's broad interpretation of the anti-trust exemption.

Federalizing Right to Work

Senator Jim DeMint has introduced national right to work legislation which would outlaw compulsory unionism on a national basis rather than leaving the issue up to the states. It is co-sponsored by seven other Republican senators, including our own David Vitter. I cannot help but think that this is essentially an anti-state's rights initiative. If you read the press releases it almost seems like the legislation would allow voluntary unionism without need of establishing majority status, but that surely is not the case, rather just the public relations face.

Walker's approval dives over assault on public employee unions

Wisconsin Governor Scott Walker now has a 57% disapproval rate, according to a new Rasmussen poll. 48% strongly disapprove. Yikes! Among families with children in public school 67% disapprove, 54% strongly so.

Unemployment drops to lowest level in almost 2 years

The Bureau of Labor Statistics (BLS) monthly employment report notes joblessness declined to 8.9% in February, with a net job creation of 192,000 jobs despite heavy cuts in state and local government employment due to state budget shortfalls. The WaPo story is here.

Making sense of polls

A new NBC/Wall Street Journal Poll finds 62% of Americans strongly oppose stripping public employees of the right to collective bargaining while at the same time even larger percentages think public employees should contribute more to their retirement benefits (68%) and pay more for their healthcare (63%). By a whopping 77% those surveyed believed public sector union members should have the same rights as private sector union members. To me, none of this is surprising or even incongruous. More after the jump

Cat's Paw approved by SCOTUS

The Supreme Court has decided that the "cat's paw" theory is applicable in at least some employment cases. The theory relates to the situation where a decision maker without discriminatory animus is affected by the advice of others who have discriminatory animus. The case involved allegations of discrimination against an army reservist who claimed his immediate supervisor fabricated a disciplinary warning due to hostility to his military obligations. The employer's vice president of human resources received a report on the disciplinary warning, reviewed the employee's personnel file and terminated the employee's employment. More after the jump