A post from Ross’s Employment Law Blog, found here, discusses a new case from California, Faust v. California Portland Cement (PDF). Faust focuses on the California state version of the FMLA, as well as some commonly-asserted causes of action resting on state law, such as wrongful termination in violation of public policy. The court of appeals overturned the trial court’s grant of summary judgment to employer, holding that each count was a triable issue of fact that the jury should have been permitted to consider.

South Carolina does not have a similar law to the FMLA but does recognize similar state law causes of action, which can be appended to federal claims, if they exist, to offer further protection for workers who were unfairly discharged.

Thanks to Jottings By An Employer’s Lawyer for this post, discussing the pending Employment Non-Discrimination Act of 2007 (HR 2015 - note the link in Employer’s Lawyer post is broken - use this PDF link to the GPO site). I’ll take a deeper look at this act over the weekend and blog about it more next week, but I did want to respond to one thing Michael states in his blog post:

As one who represents employers, there is always concern when yet another group is empowered by legislation to sue. Personally, it is hard to make any other general argument. More specifically, anytime legislation contains the word “perceived” I know that we are heading down an even slippier, potentially more litigious slope.

Ah, there it is … the favorite “old faithful” of the employer’s lobby and lawyers: the dreaded “slippery slope” argument. If you’re not familiar with it, you didn’t go to law school most probably, because law students are inundated with this faux policy argument against taking bold action in just about every class. “Well, of course we’d love to help you out, Oppressed and Discriminated-Against Subset Without Any Legal Protection (NB:ODASWALP?), but we just can’t - I mean, if we help you, who else will we have to help? It’s a slippery slope!”

It helps if you imagine it being said by a woman clutching pearls at her throat. Or your elementary school principal.

It’s a faux argument because it’s nothing but a diversionary tactic. It has nothing to do with the merits of the case at hand but speaks merely to our fears as a society - our fears, specifically, of hard work. Yes, I know, we’re the cultural heirs, at least, to the Puritans and as such are supposedly imbued with this amazing work ethic. But at heart, we’re all a little leery of wrestling with complex issues because - well, they’re hard. They require the very best thinking we can muster, and frankly, we’re a bit lazy, we humans. We’d prefer to get by.

But we need to do better than get by. If we rely on getting by, we’re doing ourselves a great disservice. Yes, it might be the gay and transgendered workers now at issue and maybe that has no meaning for you individually. But who is going to be next time? What’s the next section of society to become disfavored and downtrodden? And what if that turns out to be a section you belong to? What are you going to say then, and what do you have a right to expect from your fellow humans?

Talk about your slippery slopes.

Technorati Tags: employment nondiscrimination act of 2007, new employment laws

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A stay-at-home mom’s life seems, to those mired knee-deep in corporate drudgery, like a dream life, perhaps, but a recent study illustrates it isn’t all hugs and PB & J sandwiches on the couch watching Teen Titans on Cartoon Network.

According to the study, in order to replicate the services provided by the typical SAHM, you’d need to pay said SAHM $138,095. That’s for a stunning 91 hour work week, including such diverse job responsibilities as those commonly held by CEOs, chauffeurs, psychiatrists, and cleaning services.

But remember, a SAHM (or SAHD) doesn’t get paid in money - only in intangibles (although as a mom, I have to admit those are some pretty sweet intangibles).

Or you could do what I did, and start a home-based office. Then you get the best (and worst) of both worlds!

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Here are some disheartening statistics: the gender gap between men and women when it comes to payday grows significantly as time passes. One year out of college - 20%. Ten years after college - jumps to 31%. This begs the question: don’t we have laws against this kind of discrimination?

Yes, in fact we do. It’s called the Equal Pay Act and it specifically provides that two workers doing essentially the same job must not be paid different salaries/wages on the basis of gender. However, there are some weaknesses to the law that allow employers to get away with paying workers inequitably. Basically, the law states that the work performed must really be the same. Thus an employer can add in one extra duty to the male employee’s job description and thus justify the different salary.

Believe it or not, I’ve been a victim of this kind of discrimination myself (no, lawyers aren’t immune). A coworker with less experience than I had was paid quite a bit more per year than I was. This had been implemented by a prior administration. When I inquired about a raise at about the same time the coworker had given his notice of resignation to the subsequent administration, I was told “two wrongs don’t make a right.” I gave serious thought to pursuing the matter, but decided that the costs involved simply didn’t justify the possible outcome, especially given the weak nature of the law.

Was it wrong? According to the plain language of the act, yes - my employer apparently admitted as much. But it illustrates a real problem with employment law - oftentimes the cure is worse than the illness. Employment litigation can be among the most emotionally heated, protracted, costly, and just downright aggravating litigation in the courthouse. I advise potential plaintiffs to think long and hard about what they’re in for, if they decide to sue. It’s not that I advocate “turning the other cheek” when it comes to violations of federal and state law. But my job is to advise my clients to the best of my ability. Overlooking the very real costs of litigation in terms of dollars, emotional energy, and impact on relationships would be malpractice, in my opinion.

For more information about the Equal Pay Act, visit this page from the EEOC.

In South Carolina, as in many states, there is a law enacted to protect employers (ostensibly) from defamation suits brought by former employees who don’t like the reference the employer gave to a prospective employer in the employee’s subsequent job hunt. This will frequently arise in the context where the employee was fired, and thus is rationally concerned about what the employer might say about him in the future.

Section 41-1-65 of the South Carolina Code of Laws addresses this situation and provides, in part:

(C) Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current employee or former employee from a prospective employer of that employee shall be immune from civil liability for disclosure of the following information to which an employee or former employee may have access:

(1) written employee evaluations;

(2) official personnel notices that formally record the reasons for separation;

(3) whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and

(4) information about job performance.

(D) This protection and immunity shall not apply where an employer knowingly or recklessly releases or discloses false information.

I’ve long suspected that employers, if they know about this statute at all, misunderstand what it does. What it doesn’t do is prohibit the employee from suing the employer in any and all instances. It does not give the employer the right to speak his or her mind freely and with disregard for facts (as opposed to defamation and as opposed to opinions). It does maintain liability for any information - whether oral or in writing - that is false and that is disclosed either recklessly (employer didn’t take reasonable steps to ensure the accuracy of the information) or knowingly (employer knew or should have known that the information was false).

When I was advising public entities on these issues, I’d suggest the entity adopt as a policy “dates of service and pay grade only” - in other words, the entity would only confirm dates of employment and the pay grade upon termination. While that will prevent questions about intent and accuracy from coming into play, it doesn’t solve the problem of the “free speaker” - the employee who fields the reference call and discloses too much. If the employee is acting within the scope of his employment, then the employer will be liable for any tort the employee commits - including defamation - during that reference call.

While I can’t (and don’t) advocate trickery or deception, it’s important for former employees to know what’s being said about them. If you have a friendly potential employer, so much the better - he can check your reference and report back exactly what was said. If not, there may be other ways to discern what’s really going on. Don’t hesitate to check with a lawyer to find out if there’s something amiss in your job references.

Senator Chris Dodd (D-CT), author of the Family & Medical Leave Act (FMLA), announced in February his intent to introduce legislation which would expand FMLA coverage into paid leave rights and extend coverage to more workers. (Right now, eligibility is limited to those who’ve worked at least 1,250 hours and 12 months for the employer from whom leave is sought.) The pending bill already enjoys some bipartisan support, as Republican Senator Ted Stevens (AK) has announced his intent to co-sponsor the bill with Senator Dodd.

At the announcement press conference, Senator Dodd had this to say about the costs of taking unpaid leave in family and medical emergencies:

“Besides our nation’s families, our nation’s economy, its production and its competitiveness are threatened when families are forced to choose between the job they need and the family they love,” Dodd said. “FMLA was a milestone in our nation’s dialogue, acknowledging that families, workforce production and competitiveness are not mutually exclusive.”

The pending bill would provide up to 6 weeks of paid leave, to be funded through a cost-sharing mechanism affecting employer, employee, and the Federal Government. Senator Dodd also wrote an editorial on the subject that appeared in The New Hampshire Union Leader, which you can read here.

What You Can Do

Write to your elected representatives and let them know you support this legislation, and encourage them to do whatever they can to make sure it proceeds smoothly through the legislative process. Let them know you’ll be watching this closely, and will pay attention to how they vote! Here’s a handy portal to contact information for a wide variety of elected officials.

You can see Senator Dodd’s announcement here on his website, along with video of the announcement. Thanks to the Workplace Prof Blog for alerting us to this pending legislation.

Hello. My name is Rosemary (also called, at various times, Rosie, RosiePosie, and BAD DOG!, depending on the situation and how - er, pervasive, the accident was - and I swear, they’re ALL accidents). The Tall One asked me to fill in for her on this Blawg Review #104, since she’d done this before and the Short One had some short-person-type gig to go to, or something. I don’t know. I’m the dog, man. Ease up.

A few pics to start us off…

Yours truly, in the old digs.

Tall One and Short One. They’re sitting down so you can’t tell but the Tall One is really tall. Well, to me, she is. Especially when we’re having a discussion about those accidents (I swear).

The cats. Enough said. On to the theme!

It’s this:

Working Like A Dog

Yeah, I don’t know either. Tall One wrote it down on a sticky note. Frankly, I have a question about this saying. “Working like a dog.” Have you people seen most dogs work? I don’t know about the dogs where you’re from, but around here, me and my posse hang loose and have the fine art of chillin’ at the beach down, man. We spend our mornings getting the kids and grownups off to school and work, of course, and yes that’s hectic, but then we’ve earned the first of many daily naps. On the bed, on the couch, in the sunny spot out on the porch… frankly, I think you people would be much better off if more of you worked like we do. Which is to say, very little. And with frequent naps.

So, with that out of the way, on we go to the Review portion of this Blawg Review. (Or maybe it’s the Blawg portion…? I dunno. Onwards!)

Keeping The Worker Bees Happy

the [non]billable hour’s Matt Homann’s obviously been talking to some of my home girls. Here’s his post about Netflix and the vacation policy that ought to be mandatory everywhere. Now you’re talking!

Take a look at a lawyer after my own doggy heart - Craig Williams, who’s keeping us up to date in his South Seas Journal: Wandering In The Red Sand. Here’s his report on Day Ten.

A New York judge is threatening to sue for long-overdue pay raises, and Eric Turkewitz at the New York Personal Injury Law Blog has her back, as well as having some other things to say about it. (You just know the next time he appears in her courtroom, his opposing counsel’s gonna be all “aw, I knew I should have started a blog…”)

If it gets too bad for you tall building lawyers, do what Tall One did and start your own practice! Susan Cartier Liebel over at Build a Solo Practice, LLC has some great advice for those who might be interested in hanging out a shingle. This post is about taking on legal clients before leaving a non-legal job to set up one’s own shop. The whole blog, however, is filled with awesome suggestions and advice. Susan’s a great resource and should definitely be bookmarked (and read regularly) by anyone bitten by the “solo” bug. (And I have to say, on a personal note: I know Tall One enjoyed working for the airport and all, but I’ve never seen her as happy and energetic as I have the last several months since she left to open her own practice. So, there must be something to this “being your own boss” thing. I mean, if you absolutely have to work and all…)

Bob Coffield at the Health Care Law Blog mashes up two subjects in a way that makes you wonder “hey, why didn’t I put those two things together before….” - Google and searching for the right health care provider (among other health care topics). Hey, at least when you go to the doctor you know you’re stuck in the endless waiting room with other humans. Me, I gotta hang around cats. CATS, people. As if going to the vet itself wasn’t bad enough.

Point of Law takes on a post from the California Employee Rights Blog and calls it “very curious.” So - is a “No Bad Apples” rule a good idea? I don’t know why you humans just don’t do what we dogs do with bad actors. Just take the scruff of their necks in your jaw and shake ‘em til they roll over and expose the belly. That’s a sign of submission, you know.

Speaking of Bad Actors

Jeff Lipshaw at the Legal Profession Blog takes on the same topic - “bad apples” in the workplace - in the context of the recent spectacular Don Imus self-destruction.

Tracy Coenen presents Big frauds start small posted at Sequence Inc. FRAUDfiles. Gosh, ain’t it the truth. The cutest pups turn into the biggest butt-sniffers, you know?

Jen Burke points us to Techdirt’s article here, “EU Court Calls Employee Computer Monitoring a Human Rights Violation, In Some Cases.” Relevant quote:

The European Court for Human Rights has ruled in favor of a woman who sued the British government after her boss in her public-sector job monitored her personal phone calls and internet use while she was at work. While the decision does set some precedent that monitoring employees’ personal communications, even if done on work time over work equipment, contravenes the EU’s human-rights laws, it also makes it clear that it’s only in certain circumstances.

Oh, that blockquote thingie is quite paw-y, isn’t it? Very useful.

At Ross’s Employment Law Blog, we learned that one of the most interesting employment law cases won’t be going to the Supremes after all, thanks to a last minute agreement between the parties.

Transgendered former city manager Steve Stanton’s announcement recently that he would not sue his employer for firing him over his plans to transition to being a woman is the topic of this post over at the Transgender Workplace Diversity blog.

Brett Trout gives us “Employees Remain Biggest Threat to Corporate Data” posted at his Blawg IT blog. Those pesky employees…

The second post from Point of Law: Derrick Hughes points out some further developments in Wal-Mart v. Coughlin posted at PointOfLaw.

George’s Employment Blawg has some interesting comments on the recent Fed Ex settlement. Ah, Fed Ex. Not as tasty as the mailman, perhaps, but infinitely more fun to chase. The mailman seems to have gotten over me and my bark. Not so, Fed Ex Guy. He still squeals like a little pup. Heh.

Where was I? Oh, right.

Speaking of Mailmen…

Ellen Freedman presents Are You Ready for the New Postal Regulations and a Whopping Increase in Costs? posted at Law Practice Management. Y’know, I’ve been following this in my GRrrrrSS feeds and she’s right - this is a scary and poorly-thought-out thing. What are your poor office admins going to do when it’s time to put the postage on? SO glad I’m a dog…

Nothing to do with mailmen but a funny limerick about depositions - really, there is such a thing? Wow. Who knew? From Mad Kane’s Humor Blog.

From Juz The Fax, a post about difficult clients. Like you lawyers really have those. Kidding! I know, I know. But if you want more of ‘em - clients, I mean, not necessarily difficult ones specifically -Trusted Advisor Associates has a clue for you: refer ‘em out to your competitors. (The kicker: two of the author’s competitors posted in the comments that they refer back to the author - so, it obviously works.)

Speaking of Teaching Puppies…

Over at Trial Ad Notes, Mary Whisner points us to Julie Elgar’s creative use of The Office episodes as pedagogical tool for employment law teaching. (What - you think dogs don’t read dictionaries? Or watch TV? My favorite currently is Bones.)

Karen Asaro wants me to tell you about a conference coming up in Virginia on Conflict Resolution from the ACR Virginia - seems to be a big one, too. May 6 & 7, in Fredericksburg. Visit the link for more details.

Alan Childress at the Legal Profession Blog says dog tongues aren’t cleaner than human tongues. I beg your pardon. He also says some other stuff worth checking out.

Stephanie West Allen presents an Interview of Mohammadreza Hojat on the empathy of service professionals posted at idealawg.

And finally, for this subheading anyway, Enrico Schaefer, the formerly anonymous Greatest American Lawyer, teaches us what we can learn from Finding Nemo.

More About Puppies

What is it with you humans and offspring? They’re just puppies, y’know. They’re, like, eight in a litter. They’re everywhere. Although, I must say, you human women have us beat when it comes to dropping the pups. You get drugs. Dude. (Full disclosure: Tall One had me fixed, when I chose her after she came to visit me at the shelter. I’ve never had puppies, and am perfectly OK with that. Spay and neuter your pets, people. Please.) Anyway, The Mommy Blawgger points us to some alarming cases about midwives being mistaken for criminals. Sadly, no mistake - when humans draw guns, I’ve learned from TV, they’re usually quite intentional about it. I have a feeling Tall One will be keeping an eye on these stories.

While we’re on the subject, Tanya at the Motherwear Breastfeeding Blog gives us an incredible rundown on breastfeeding legislation across the US. Seriously, I don’t get the to-do over this subject. It’s puppy-feeding, people! I mean, why the freak-out? Would you raise a stink about a sandwich? And what’s with these businesses wanting human moms to go into bathrooms to breastfeed their babies? Would you eat a sandwich in those bathrooms? Sandwich. OK, now I’m hungry. Time to go nose around in the garbage can. I’ll be back… where’s the ’save’ button on this thing? There it is - what? I’m used to Typepaw.

… And About Where Puppies Come From

Ed. wants you to know about this post from David Giacalone. What can I say? It’s more like a law review article than a blog post and my eyesight isn’t that great. The haiku’s nice. Again with the not getting what the big human deal is about the topic thing. Again: dog. Still, nice post. (Tall One just popped in and has this to say: “Put your glasses on and read it. It’s an awesome piece, and I agree it’s not as cut and dried as Volokh may have made it seem, in practical terms. In idealistic terms: the hell?!?! Of course it doesn’t matter!” So - there you go. And … there Tall One goes, out the door again, beach chair and suntan lotion in hand. Y’all, I think I’ve been Punk’d.)

Nicole Black presents “Hey Baby, What’s Your Sign? Don’t I Know You From Somewhere? Oh, And Would You Like to Take a Hit of Cocaine?” posted at Sui Generis–a New York law blog. Seriously? That’s how you humans do it? Ooookay. Moving on.

Bloggy Kudos

Jim Calloway’s Site of the Week at his Law Practice Tips blog is Nerino Petro’s Compujurist.com - last week, Jim was nice enough to feature one of Tall One’s other blogs, The Inspired Solo. (Don’t tell her I told you this but I think Tall One’s signed up to host this puppy again next later this year over at The Inspired Solo! Hope she doesn’t expect me to fill in for her again. Or even worse - the cats. Gah.)

Also, if you have any particularly cherished blogs, you might want to head over to PayPerPost’s Blogger’s Choice Awards and nominate them. There are several categories (interestingly, no “Best Law Blog”? A clear oversight) and a heated battle between Wil Wheaton’s blog and Rosie O’Donnell’s blog - man, those two have some rabid fans. I mean - rabid in the sense of - ah, forget it. You can sign up for a free registration at the site, and you can (interestingly) vote for more than one candidate in each category. Huh. Kinda like the American Idol of the blog world, no? (I totally stole that from Tall One’s paid blogging gig over at BlogNewsWatch.)

That about wraps it up for this edition, folks. Hope you come back tomorrow for a human-authored post from the Tall One. And remember - “blog” is just two letters away from “dog.” Coincidence? I think not.

Nap time!

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues. - The Tall One.

Next Monday, this blog will be hosting Blawg Review, a carnival of law-related blog posts from around the web. I’ve had the pleasure of doing this before with my former blog, The Airport Lawyer, and now look forward to hosting the carnival on one of my new practice-related blogs.

I’m still trying to come up with a clever, appropriate them, so if you have any suggestions, I’d appreciate hearing them! Drop me a line in the comments or via email - sheryl at schelinlaw dot com. Gracias!

Cracker Barrel, the restaurant chain based in Lebanon, Tennessee, has sued one of its insurers over a settlement the group made in an employment discrimination suit, alleging the insurer didn’t pay the restaurant’s holding company after it paid out claims totaling $2 million. Cracker Barrel, as the Workplace Prof Blog says “has been the subject of much scrutiny as far as its labor practices towards blacks and women” (and, I would add, its accommodation practices towards minority customers). The restaurant has vigorously defended itself in some instances, and in others (as with the underlying lawsuit here) made settlement offers. The chain’s current suit alleges that the insurers were obligated to reimburse the company for these offers but didn’t do so. The insurers, for their part, deny that they had any obligation of reimbursement in this case.

Back in 1991, according to the website 365Gay.com, the company went on the record as stating it would only hire employees who “displayed normal heterosexual values which have the foundation of families in our society.”
Personally, I love their food. But the reputation of the restaurant puts its clients in a pickle. Do you support the restaurant by eating there? If so, are you supporting their questionable hiring policies, too? Should customers vote with their wallets?

Now, I’m getting hungry. Only two more hours until lunch…

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As a show of solidarity to another blogger, Kathy Sierra of Creating Passionate Users, I am taking this blog dark (i.e., no posting) for the remainder of this week. Kathy has been the victim of a foul, evil campaign including death threats and threats of sexual violence, for no reason apparently other than that she exists, and she blogs.
I exist. I blog.

But not this week.