The Things People Say and Do
by Michael Fox
One of the many changes that have happened since I first started practicing law in 1975, is the appearance of services which monitor the filings of new lawsuits and send summaries to law firms. One such excellent service is Courthouse News Service, which actually does a lot more than just prepare summaries of new lawsuits. In the first paragraph of their "about us" they note:
Courthouse News Service is a nationwide news service for lawyers and the news media. Based in Pasadena, California, Courthouse News focuses on civil litigation, from the date of filing through the appellate level. Unlike other Internet-based publishers that simply aggregate information prepared by other content providers, Courthouse News publishes its own original news content prepared by its staff of reporters and editors based across the country.
In any event, one of their recent reports of a filing of a lawsuit by a pro se plaintiff in Harris County, Texas was the following:
Plaintiff points to ... an executive assistant, as the source of such office
hostility that plaintiff gave her an article titled "De-clawing cattiness
at work." She was fired the next day. She wants $600,000 damages.
And just in case you are wondering, it is at least theoretically possible that this did happen as a Google search reveals a 2005 article by Executive Coach Kay Cannon, De-clawing Cattiness in the Workplace
Apparently, no matter how good the advice, it was not appreciated.
Monday, November 04, 2013
ENDA Half-way Home?
by Michael Fox
For the first time ever the United States Senate seems poised to pass legislation that would prevent discrimination against gays, lesbians and transgendered individuals appears to have obtained the 60 votes that would allow it to pass. See, Bill on Workplace Bias Appears Set to Clear Senate Hurdle.
However, with Speaker John Boehner in opposition, it seems unlikely that the bill will be put to a vote, much less pass the House. Although this is one issue on which big business is generally neutral, so stranger things have happened.
In a speech last month, I predicted ENDA as one of the first pieces of employment legislation I expected, if the legislative gridlock ever melted.
I will stick with the prediction, but I would be surprised if this were an issue that made gridlock disappear, even temporarily.
Thursday, October 17, 2013
A Study That Won't Make You Feel Good in Half the Country
by Michael Fox
Sara Murray of the WSJ has an interesting story this week about state legislation in the now 23 states that as of January will require employers to allow employees to bring weapons into their parking lots. Guns in the Parking Lot: A Delicate Workplace Issue.
What caught my attention was the mention of this statistic:
A 2005 North Carolina-based study in the American Journal of Public Health showed that workplaces that allowed guns were about five times more likely to have a worker get killed on the job compared to workplaces that prohibited all kinds of weapons.
For guns, the linkage was actually 5 to 7 times more likely. For those who want to get into the weeds, a link to an abstract of the study is here
Now one study alone is not enough to dictate policy, but if I am an employer responsible for assembling a large group of humans 300+ times a year, it would certainly give me sufficient pause to ask for a concrete explanation of why such a legislative action makes sense.
Monday, October 07, 2013
Blogging Is a Habit
by Michael Fox
And like any other habit, it is much easier to fall out of than create. I am always amazed how after working out regularly for several months, missing a couple of weeks can put me back to ground zero in terms of the work out “habit.”
That has certainly happened to me with blogging as well. But with the first Monday of October, which of course is the opening of the current term of the U.S. Supreme Court, it seems a like a good time to try to kick the habit back in gear.
And there’s more in store. This Friday in Austin, Angie Marshall and I will be speaking at our firm’s seminar on:
TITLE VII AND EMPLOYMENT LAW: THE FIRST FIFTY YEARS
When Congress passed the Civil Rights Act of 1964, it marked not only a turning point in civil rights, but the beginning of the imposition of an adversary system in the workplace. Trace the history of the development of anti-discrimination law, obtain a greater understanding of current cutting edge issues, and gain an insight into the future during this informative session.
Trial Techniques for In-House Counsel: Don’t Make Juries Mad
Taking a case before a jury can be a nerve-wracking prospect for in-house counsel. The stakes are high and the results can be gratifying . . . or astonishing. This session will cover multiple trial issues and strategies, including juror insights and strategies for voir dire, challenging evidentiary issues, preparing witnesses, selecting experts, and more.
And hopefully, by then I will also be back in the blogging habit.
Thursday, August 01, 2013
Whose Side Are You On? The Perils of HR
by Michael Fox
I have often said that being a front line supervisor is the
most difficult job in today's workplace. I think that is still true for a
specific position. But if there is a department that is fraught with
peril, it has to be the Human Resources group.
The points Green makes, that HR knows things they can't tell
you, that their job is to support the managers of the company not employees, to
list just two, are true, but point up
one of the problems for HR in the modern world.
Too often, the constituency that they are asked to serve is
not made clear, or at least not explicitly so. Is HR an employee advocate,
looking out for the interests of the employees? Maybe, and clearly that has a
role, but in reality, the responsibility is more often in support of
management, although that support often comes in the form of being the
This topic certainly deserves a lot more attention than this
brief post. Until this issue is resolved at any
particular company, HR will forever be sentenced to a very unhappy existence.
Monday, July 15, 2013
Pay Cards - Federal Standard Might Be Helpful
by Michael Fox
Although employers are often ambivalent, if not negative, about federal involvement in the workplace, there are time when it is beneficial.
There is not anything that is more basic about the employment relationship than how employees get paid. I can still remember getting my 65 cents an hour pay as a delivery boy for Graves Drugstore, in cash, in a little white envelope every Saturday. For a 15 year old netting $35 a week that was fine, but not very scalable for a larger employer.
And in a world where the number of the unbanked and underbanked is growing larger, see the Forbes article, Who Needs Banks?, it's an issue that also impacts employees.
One solution has been pay cards. But for a national employer using this means of payment means complying with a whole host of state laws, very few of which are specifically designed to address that particular issue. So, wending your way through the maze can be complicated, and that means expensive.
So the NYT article, 16 Senators Seek Inquiry of A.T.M.-Style Pay Cards, highlights one of the times where at least some segments of the employer community might be happy with a comprehensive review of the issue and a federal solution.
As the article points out, it is an area where there can be abuse. But abusing employees is not the desire nor intent of all but the most rogue of employers, and so reasonable rules and regulations that could be applied across the country no matter where the employee works would really be helpful.
The devil is in the details of course, but my guess is that this is one area where common ground could be found and Congress might could actually solve a problem that exists for employers and make sure that employees are protected.
Wouldn't that be a novel gift from Congress?
Tuesday, July 02, 2013
Federal Government Action on Employment Discrimination Before Title VII
by Michael Fox
Congress as early as the Unemployment Relief Act of 1933 made a policy declaration "That in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed."
Action to enforce the policy were much slower to develop. Nothing was passed by Congress.
In 1941 and 1943, President Roosevelt created two Fair Employment Practice Committees whose focus was on preventing discrimination by government contractors who were involved in the war effort. The first FEPC had only 8 staff members and no powers. The 1943 version was better staffed with 120 employees, but still no powers. They did receive over 8,000 complaints and held 30 public hearings, but their powers were limited to enforcing any decision by negotiation, moral suasion, and the pressure of public opinion. The powers of the second FEPC expired in June 1946.
Under Presidents Truman and Eisenhower the federal government's efforts were focused on government contractors, but again with no real teeth.
In March of 1961, President Kennedy issued Executive Order 10925, which established the President's Commission on Equal Employment Opportunity to focus on eliminating employment discrimination on the basis of race, color or national origin in both government employment and by government contractors. It also for the first time adopted the concept of requiring affirmative action on the part of government contractors.
This Executive Order also required government contractors to file reports and gave the Commission the power to recommend suits by the Department of Justice and to debar contractors who failed to comply with its requirements. Much of the energy though was 200 "plans of progress" under which large companies set up voluntary recruitment plans designed to give minorities equal employment opportunities.
It was this Commission on Equal Employment Opportunity that seemed to be the model for what was originally included in Title VII introduced in June of 1963.
Sunday, June 30, 2013
June 1963 - Civil Rights Act Introduced
by Michael Fox
On June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.
On June 26, 1963, the first hearing was held with Attorney General Robert F. Kennedy as the sole witness.
Since for purposes of this blog, the key provision was Title VII, which is the foundation for the advent of employment law, it is interesting to note some of the provisions of the bill as originally introduced:
Obviously, a far cry from what would emerge as Title VII one year later in the bill as passed by the Congress and signed into law by President Johnson.
- It created four protected categories, race, color, national origin and religion;
- It was designed to prevent discrimination in voting, education and public accommodations;
- In the introduction it made the following statement: It is also desirable that disputes or disagreements arising in any community from the discriminatory treatment on the basis of race, color, or national origin shall be resolved on a voluntary basis, without hostility or litigation. Accordingly, it is the further purpose of this Act to promote this end by providing machinery for the voluntary settlement of such disputes and disagreements.
- There was a Title VII, which allowed the President to establish a Commission on Equal Employment Opportunity with a mission of eliminating discrimination on the basis of race, color, national origin and religion by government contractors and sub-contractors. It would have the powers given to it by the President and would be chaired by the Vice President of the United States, with the Secretary of Labor serving as the Vice-Chair.