Dan Seligman writes an intriguing piece about at-will employment, the value it presents to an economy, attempts to have exceptions swallow the rule, and the irony of the New York Times invoking it in a recent employment dispute. (“The Right to Fire”, Forbes, Nov. 10 (registration required)). One of Governor Gray Davis’s departing gifts to California taxpayers was his signing of SB 578, an end to at-will employment for government contractors (on pain of criminal prosecution), which will manifest itself in increased litigation expenses and transaction costs. (Kathy Robertson, “New laws reshape workplace”, Sacramento Business Journal, Oct. 20).
Posts Tagged ‘workplace’
Recommended book
Highly recommended: David Bernstein’s new book You Can’t Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws. David, who is a professor of law at George Mason and a contributor to the Volokh Conspiracy (and has collaborated with us in the past on a number of projects), does a great job of documenting a theme dear to our hearts, namely the persistent clash between harassment law (and antidiscrimination law more generally) and freedom of speech, conscience and personal association. The book seems to be doing deservedly well on Amazon and can be purchased here (& see Dec. 7).
Another diversity triumph
Wheaton College, a 143-year-old evangelical institution in the Chicago suburbs that may be best known as the alma mater of the Rev. Billy Graham, has “lifted a longtime ban on drinking and smoking in private for faculty. [College president Duane] Litfin said a key factor in that change, along with [the dropping of a former rule against dancing], was the 1991 Illinois Right to Privacy in the Workplace Act, which some feared left the college vulnerable to a lawsuit. The law prohibits discrimination against employees who drink or smoke off the job unless there is a strong religious belief against the practice.” The college said it wasn’t sure its policy would stand up in court given the lack of a specific passage in the Bible proscribing alcohol use. (Meg McSherry Breslin, “It’ll be dancing by the Book”, Chicago Tribune , Oct. 24)(via Vice Squad, a new site devoted to “public policy concerning alcohol, nicotine, other drugs, proxtitution, gambling, porbography”, Oct. 24). Vice Squad in turn points to an Apr. 6 Crescat Sententia commentary in which Will Baude doubts that the college would actually have lost such a suit.
Calif.: here comes labor-law bounty hunting
Outgoing Calif. Gov. Gray Davis has quietly signed S. 796, a first-of-its-kind bill that authorizes lawyers to file private damage suits over labor code violations. Business leaders “argue it could have far-reaching financial consequences to employers across the state and be more costly than the landmark employee health bill, SB 2, signed by the governor earlier this month. … The legislation would allow a worker to sue on behalf of other employees for wage and labor code violations. Moreover, it permits a judge to force employers to pay attorney’s fees and penalties.” (Gilbert Chan, “Sue-your-boss bill becomes law”, Sacramento Bee, Oct. 20). “This is probably the worst bill I’ve seen in my three years in the State Legislature. Senate Bill 796 is the ‘Son of 17200’ ? California?s much-maligned and highly abused Unfair Competition Law,” said Assemblymember Tom Harman, R-Huntington Beach. “Large employers in California will now be a cash cow for trial lawyers thanks to SB 796,” said Harman. “A minor one-year Labor Code violation at the business employing 3,000 workers will generate civil penalties totaling more than $31 million”. (California Assembly Republicans press release, Sept. 11) (& welcome Employer’s Lawyer readers)
Workplace killer’s mom wants comp benefits
The mother of Jonathon Russell, who killed three people and wounded five before shooting himself in a July shooting spree at the Modine Manufacturing Co. in Jefferson City, Missouri, has filed a workers? compensation claim that seeks a death benefit from the company. The late Russell died on company time, according to her filing. The company and its workers’ comp insurer have rejected the claim on the grounds that Russell’s homicidal and suicidal activities were deliberate and were not undertaken in the course of his employment, which means the claim is most likely headed to an administrative judge. (Nate Carlisle, “Shooter’s mom seeks job-injury benefit”, Columbia Tribune, Oct. 5).
$1 damages and reinstatement; $118,000 fee request
“An attorney who helped a fired city employee win back his job and $1 in damages is seeking nearly $118,000 in fees and costs related to the case.” Attorney Cynthia Pollick had sued on behalf of vehicle mechanic Robert Murray, fired by the city of Scranton. A jury agreed that the firing was wrongful under a state whistleblower statute but awarded only token damages. “The reason the jury’s monetary award was only $1, she said, is because Mr. Murray managed to find another job paying $4 more an hour within one week of his termination.” (Thomas K. Staff, “City employee’s attorney seeks fees”, Scranton Times Tribune, Sept. 18).
Valued Senate employee
Baseball Crank (Aug. 27) links to a pro se employment lawsuit conducted in memorably abusive fashion (PDF) by an employee of the U.S. Senate Sergeant at Arms, which was finally thrown out of court Aug. 22 after years of litigation. And he wonders: how much of this sort of thing do federal managers have to deal with? We must part company from him, however, on his view that disabled-rights law, harassment law and the like are somehow brainstorms of the Democratic Party — all were crucially advanced by Republican presidents and judges, notably the senior Bush who was said to view the ADA as his proudest domestic achievement.
Excerpts from The Excuse Factory online
Speaking of our editor’s books, we notice that Amazon.com has recently posted some 49 sample pages’ worth of our editor’s 1997 book on employment law, The Excuse Factory (Free Press), on its page for the book. This means that some portions of the book can now be read in online form for the first time, which we hope will serve as an inducement for many of you to want to buy a copy of the whole thing. The book is still highly relevant for anyone wishing to make sense of the legal mess we’ve made of hiring and firing in this country.
Employment law roundup
Newsweek purports to discern a renewed boom in workplace suits, though the strength of its evidence for that proposition is open to question (Jennifer Barrett, “‘I Have Never Seen Such a Fever Pitch'” Jul. 21). In one remarkable bit of stimulation to the employment litigation sector, a California court of appeals has ruled that a litigant can turn an age discrimination claim into a lawsuit under the state’s famously broad unfair-competition statute, s. 17200, on the grounds that an employer who commits age discrimination gains an unfair competitive advantage over employers that don’t (Alexei Oreskovic, “Nestle Ruling Paves Way for New Work Discrimination Cases”, The Recorder, Jun. 16). The EEOC has filed a lawsuit on behalf of a Mormon employee who says he was fired for refusing to drink alcohol, prompting blogger Michael Fox to observe that “one of the fascinating things about employment law is how almost any issue that could arise in the workplace, seems to ultimately lead to a possible claim of some sort”. (“Fired for not drinking, suit alleges”, Jewish World Review, Aug. 3; Employer’s Lawyer, Aug. 26). And the EEOC has gotten its hand slapped by a court after overreaching in one of those much-publicized “noose” racial harassment cases (EEOC v. Asplundh Tree Expert Co., 11th Circuit, Aug. 7 (PDF), via Employer’s Lawyer, Aug. 7).
Oz: trucker can sue over skin cancer
Australia: a “truck driver has won the right to sue his former employer for not warning him that over-exposure to sunlight causes skin cancer.” A lawyer who represented 71-year-old Eric Reeder “said it put employers on notice that sun protection was not just a worker’s responsibility.” (Adam Morton, “Truckie to sue boss over cancer”, AAP/News.com, Aug. 16).