November’s results obviously make it more of an uphill slog for legal reformers to win legislative victories; a roundup in Inside Counsel provides some details, quoting me along the way. (Mary Swanton, January). I venture a prediction that Democrats will use their new Congressional power to push legislation that would expand private causes of action in the employment field, a step that would gratify the plaintiffs’ bar and many union advocates alike. Contrary to an implication that the article may leave, private causes of action are at present very much alive and thriving in the wage and hour field, but they’re not (yet) authorized in the case of many other sorts of labor-law violations.
Posts Tagged ‘workplace’
Gross v. Industrial Commission of Ohio
Jonathan Adler beat me to talking about this Ohio Supreme Court case, but I think it presents an interesting example of “hard facts make bad law”—and, in this case, the plaintiff, an especially undeserving fellow, should have won, but didn’t.
David Gross, a teenager, was a callow sort who worked for the local KFC. Among his duties was cleaning out the pressure cooker, but Gross repeatedly ignored explicit instructions not to use water in cleaning it. This was no arbitrary command, for in November 2003, Gross did just that, and the cooker exploded, burning Gross and two co-workers. The franchise investigated and fired Gross in February 2004 for the safety violation, and sought to end their workers’ comp payments to Gross. Their theory: the egregious safety violation was a voluntary abandonment of employment. The administrative agency agreed, the court of appeals reversed, and the Ohio Supreme Court restored the original decision that the franchise didn’t have to pay workers’ comp after it fired Gross.
A Volokh commenter suggests that the fact that the franchise waited to fire Gross means that they’re on the hook. That seems like the wrong rule: it would punish the franchise for taking additional steps to ensure that it was acting fairly to its employees by investigating the incident before firing someone.
That said, it’s wrong to treat the firing, even the for-cause firing, as a “voluntary abandonment.” Workers’ comp is a no-fault regime. Raising the question of fault, even when the fault is as egregious as Gross’s here, inserts a complicating factor into the system. There’s a certain unfairness to assessing liability against the franchise: they told Gross not to do something dangerous on multiple occasions, he did it anyway, and Gross gets to recover. But the alternative is to create an ambiguous rule that gives other employers the incentive to turn workers’ comp hearings into a question of whether a worker’s negligence was really recklessness or intentional disregard for safety rules. One reduces Type I errors, while increasing Type II errors, and substantially decreasing administrative efficiency: straightforward proceedings now have uncertainty, raising expenses for everyone. Perhaps Gross should be criminally prosecuted for reckless endangerment; perhaps a penalty of a criminal conviction should include restitution to the employer. But in the civil proceeding, the legislature made a conscious decision of the tradeoffs here, and it’s not for the courts to decide that those tradeoffs should be recalibrated in individual cases.
Note that valuing efficiency here favors plaintiffs, rather than defendants, putting the lie to the argument of anti-reformers that reformers hide behind efficiency to mask a pro-defendant bias. This reformer favors efficiency because it makes all of us better off in the long run. Efficiency isn’t the only value—a society can rationally choose inefficient procedures because it believes the protected values are worth the additional cost—but the public policy debate shouldn’t ignore the questions of costs and benefits and act as if results can be achieved for free.
Big Client: I’m Firing My Firm Because It Has Too Many Black Partners
Was it the snub heard ’round the world?
At a conference earlier this year, one speaker told the crowd that his former company, McKesson Corp., had cut a prominent firm out of the bidding for its legal work.
Though Arthur says he didn’t name the firm, he did explain his reason to the audience: “It had been highlighted in a legal magazine for having [more black partners than average].”
Arthur was followed on stage by Wal-Mart General Counsel Thomas Mars, who, Arthur and others say, told the audience: “I know who that firm is, and I am going to speak to them.”
…
As for Arthur, making business decisions based on diversity just makes good sense, he said. “Law firms exist to please and serve clients,” he said.
Outrageous that a client would give or take away business based on the completely irrelevant skin color of its attorneys, no?
Excuse me, I misquoted the adjectives in the story: the McKesson attorney, Arthur Chong, was complaining that the law firm had too many white partners. Which is apparently so unnotable that an entire article in The Recorder about Chong’s speech does not speak to or raise the point that his statement was appalling. (Kellie Schmitt, “Corporate Diversity Demands Put Pressure on Outside Counsel”, The Recorder, Dec. 28). Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value the sneetches with the stars on their bellies more than sneetches who are merely the best lawyers, and shareholders tolerate this dissipation of value. (And welcome, WSJ Law blog readers, where there is a big debate in the comments.)
UK patient: doc hurt my feelings by telling me to quit smoking
And she wins about $80,000 (plus attorneys’ fees) for her hurt feelings. Mrs. G delayed her caesarean a few minutes to have a pre-op cigarette; her coughing made her epidural more difficult, and Mrs. G and was criticized by anesthesiologist Dr. A, who noted the increased likelihood of surviving to see her daughter’s wedding if Mrs. G quit smoking. (Arthur Martin, “Doctor’s smoking jibe wins mother £44,000 payout”, Daily Mail, Dec. 21; Kevin MD blog). UK medical compensation has grown 30,000 percent in under ten years. The Daily Mail story also notes:
An employment tribunal heard that David Portman, 27, took 137 days off over a five-year period because of a series of ‘unfortunate accidents’.
When he took yet another week off because of his pet’s demise, bosses decided enough was enough and sacked him.
But Mr Portman won his claim for unfair dismissal – and this week walked away with undisclosed compensation reckoned to be at least £10,000.
The tribunal ruled his absences from work were all legitimate and mostly caused by injuries suffered in the course of his duties.
Mr Portman, who was based with Royal Mail in Sheffield, put his months off duty down to bad luck.
‘I felt really aggrieved when I was sacked without them taking into account my particular circumstances,’ he said.
Lawsuit: I should be allowed to anoint cubicles with olive oil
Evelyne Micky Shatkin worked at University of Texas at Arlington, where she had had a series of disputes with a co-worker, which after mediation, resulted an ultimatum from Human Resources: further problems could get you fired. Not satisfied, Shatkin held an after-work “prayer session”, where, with another employee, Linda Shifflett, “anointed” the absent co-worker’s cubicle with olive oil, purportedly because of fears that the co-worker was demonically oppressed, chanting “You vicious evil dogs. Get the hell out of here in the name of Jesus. … I command you to leave.” A third male co-worker, who had agreed to participate in the prayer, became uncomfortable with the use of monounsaturated fats, and reported the matter. The other two, acknowledging that the third was not an active participant, were fired, and are now suing, claiming religious discrimination (as well as age and sex discrimination because the third worker was not fired). (Eva-Marie Ayala”Women said peer was ‘demonically oppressed'”, Fort Worth Star-Telegam, Dec. 23; AP, Dec. 23). Shame on the Liberty Legal Institute for bringing the suit.
Spanking update
Company supervisors, who often administered the spankings, testified in April that [Janet] Orlando was a willing participant in the team-building exercises and that she never complained about being spanked. They said she quit because she was passed over for a promotion.
An attorney representing the company likened the activities to old-fashioned fraternity hazing and said they were not meant to harm anyone.
But a jury sided with Orlando and awarded her $1.7 million — of which Orlando was to receive $800,000.
After Alarm One filed an appeal, Orlando agreed to settle the case for $1.4 million.
Except now, Orlando’s lawyer claims, the insurer has backed out of the settlement (the insurer refused to comment, so the press has only one side to report), so he’s seeking to leverage this alleged refusal to pay into a $5.6 million bad-faith award. As for Orlando herself, she blames a recent shoplifting arrest and no-contest plea (her third in three years) on stress from the dispute and newfound fame. Also left unexplained by the story: how it came to be that Orlando was to receive less than half of her award, with the majority going to her lawyer. (Chris Collins, “Award in spanking suit going unpaid”, Fresno Bee, Dec. 14).
Web “addiction”, cont’d
Business Week is urging us all to take seriously a lawsuit by IBM employee James Pacenza of East Fishkill, N.Y., sacked for improper internet use at work. Pacenza’s attorney has filed a $5 million wrongful-termination suit and is advancing web-addiction theories/excuses for his client. Business Week quotes various sources who are eager to predict some sort of emergent legal status for internet addiction — maybe as a covered condition under the Americans with Disabilities Act — but it all still seems pretty unlikely to me. (Catherine Holahan, “Virtually Addicted”, Dec. 14). On “BlackBerry addiction”, see Oct. 2, etc.
The Kafkie Awards
Bob Spagat, an employment lawyer in the Winston & Strawn San Francisco office, perhaps following the footsteps of Gerald Skoning’s list, “pay tribute to court opinions that ‘score high on the list of cases you hate to have to explain to your client.’” The Ninth Circuit, unsurprisingly, owns the category. Overlawyered readers have already seen several of the nominees:
- Dark v. Curry County, Dec. 6, where a man prone to epileptic seizures had a cause of action for being fired from heavy equipment operation;
- Syverson v. IBM, where the Ninth Circuit invalidated the freedom to contract to standard release agreements, which now have to meet a Golidlocks standard of not too complicated, but not too simple either.
- Jespersen v. Harrah’s Operating Co., where some judges were willing to hold a casino liable for a makeup requirement.
The winner? Josephs v. Pac Bell, where Pac Bell won summary judgment on a claim that it illegally fired a worker who lied about his criminal history—but was held to have broken the law for refusing to hire him back. This raises American employment law to the level of self-parody (though Canada is chasing us). Matthew Hirsch quotes Spagat on Josephs:“This case stands for the proposition that it doesn’t matter what the facts are, you should always think to settle a case before it gets to the Ninth Circuit.”
“Calculating damages: a formula for outrage”
Latest in the Tennie Pierce (firehouse dog food prank) saga: Los Angeles Times columnist Steve Lopez finds reader sentiment heavily taking the view that the $2.7 million settlement figure is stark raving bonkers (Dec. 3). He speaks with Chief Assistant City Atty. Gary Geuss to get a feel for how the number was arrived at:
“The mediator said Pierce would be a good witness, his wife would be good and his daughter was going to get on the stand and start crying,” says Geuss….
In one case that went to trial two years ago, an L.A. cop got $4.1 million in a racial discrimination and retaliation case despite having made his own disparaging racial remarks.
Juries tend to jump at the chance to stick it to employers, Geuss said. When prospective jurors are asked if any of them have had issues with their bosses, “About 90% of the hands go up.”
Geuss began doing the math….
The L.A. Times’s news side, according to blogger Patterico, has begun belatedly acknowledging some of the flaws in Pierce’s case (Dec. 3; Jim Newton, “Dog food lawsuit a test for L.A. mayor”, Dec. 3). Earlier: Nov. 11, Nov. 22, Nov. 29, Dec. 2.
Dog food suit update
We’d like to take credit, but: After talk-radio-flamed outrage over the City Council’s approval of a $2.7 million settlement for “racial harassment” for a 6’5″ African firefighter nicknamed “Big Dog” who was pranked with a meal of dog-food-spaghetti-sauce, the mayor vetoed the settlement. The “John and Ken Show” website posted photos of the plaintiff, Tennie Pierce, engaging in other pranks. Five council members backtracked after voters started sending cans of dog food to the politicians as a protest, which makes it unlikely the veto will be overridden, even though the settlement was approved 11-1. Hurt politically: the office of city attorney Rocky Delgadillo, whose office continues to defend the settlement. (Sandy Banks and Steve Hymon, “Fury on the airwaves undid bias settlement”, LA Times, Nov. 22)