Ohio Employer’s Law Blog points out that according to a recent article, mandatory arbitration does not live up to its expectations.  See blog post.  Jon Hyman at Ohio Employer Blog refers to a recent ABA article finding that in one study, mandatory arbitration was 30% more expensive and 25% longer than traditional litigation.  The average costs and fees in an employment arbitration were $102,338 as opposed to $70,491 for litigation.  The average life cycle for an employment arbitration was 21 months as opposed to 17 months for litigation.  

The US Supreme Court issued a ruling in Rent-A-Center West v. Jackson.  The Supremes have found that an arbitrator should resolve issues regarding the enforceability of an arbitration agreement, and not the courts.  See decision.  This is an unfortunate decision.  Simply based on policy grounds, arbitrators earn income by hearing arbitrations.  So, they have ample incentive to find every arbitration agreement enforceable, regardless of the circumstancess of the agreement.  

As the dissent points out, a challenge to the enforceability of the arbitration agreement under the facts in Rent-A-Center would be made by an arbitrator.  Not said is the fact that many arbitrators are not lawyers.  I cannot imagine how a non-lawyer would deal with issues regarding contract issues.  

Arbitration agreements have become very common in the work place.  Arbitrations have many pros and cons, but mostly cons where employees are concerned.  As Workplace Prof points out, the Federal Arbitration Act, passed in the 1940’s, was never intended to apply to situations in which the arbitration agreement is not a true arms-length agreement.  See post.  The FAA is being applied to situations in which the parties do not have comparable bargaining power.  See Workplace Prof’s description of a case in which bank customers alleged forgery of their signatures on a so-called agreement to arbitrate disputes with a bank.  Yet, the federal court still applied the FAA and ordered the bank customers to arbitration.  

It perverts contract law to force parties claiming fraud or forgery to subject themselves to a psuedo contract.  It is equally perverse to pretend that employers and employees can negotiate in good faith an agreement to arbitrate employment disputes.  

 In a recent decision, the US Supreme Court affirmed the right of employers to review the text messages on employees’ cell phones.  In City of Ontario v. Quon, the government employer searched the employees’ cell phone for text messages.  The cell phone had been issued by the employer.  The City believed the employee had exceeded the limit on cell phone messages.  So, it got a private cell phone company to release the text messages.  In reviewing the text messages, the employer found some of the text messages to violate additional company policies.  Some messages had sexual content.  The Ninth Circuit Court of Appeals had found this intrusion violated the Fourth Amendment, since the employer could have simply looked at the recipient’s address to see if the messages violated policy. 

The Supreme Court did not specifically address the isue regarding wherther the employee has a privacy interest in the text messages.  But, it did assume the employee has a privacy interest for the purposes of resolving whether the employer’s actions were lawful.  In a close 5-4 decision, the Supreme Court found that the actions of the employer did comport with the Fourth Amendment.  See report. 

The US Supreme Court found that possibly exceeding the text message quota was sufficient reason for the intrusion into the text messages.  And, the court found that looking at the entire message, instead of just the addressee, was appropriate under the circumstances.  The court seemed to note with approval that the employer only looked at a sampling of the messages sent during work hours. The sexual nature of the messages did not help the employee’s cause. 

The Supreme Court mentioned that this is a growing area and it would not issue any broad rulings. 

In Iraq and Afghanistan, Moslem interpreters help us everyday with the war effort.  Interpreters assume a special risk.  They are targeted whenever possible.  See report of an Iraqi interpreter who was killed in Samarra by his son and nephew.  His son and nephew are said to be members of Al-Qaeda.  Samarra is heavily Sunni, so this report could be true.  We could not carry on the war with any degree of success without these hundreds of interpreters.  

Muhsin said al-Daraji worked for us since 2003.  His family constantly urged him to stop working for Coalition Forces (ie, US forces).  See CBS news report.  That is probably too long to work for Coalition Forces.  The longer you work for us, the more you become a target.  My interpreter when I served in Iraq also worked for CF from the beginning.  She was caught, tortured and killed in 2006.  

Hundreds, thousands of other Iraqi and Afghans cooperate with us in a wide variety of ways.  They too become targets.  When I was in Iraq serving in the US Army, we had to meet with Iraqi contractors far away from prying eyes out in the desert somewhere.  That was for their safety, not ours. 

Yet, I continue to hear Americans claiming Islam is violent and all Moslems seek jihad against us…..

City Manager who "terminated" his employment under clouds of a scandal demands his severance pay.  See San Antonio Express-News story.  Ron Cain, who was City Manager for the town of Windcrest, a San Antonio suburban city, stepped down at the suggestion of the City Council.  This was all prompted by a scandal involving his brother and millions of dollars spent or not spent on Rackspace, a large employer in Windcrest.   Mr. Cain’s lawyer admits that nothing in his employment agreement provides he would be entitled to severance pay.  But, the lawyer adds, the intent of the drafters of the agreement was that Ron Cain would severance benefits if he resigned. 

It sounds to me like the newspaper report did not get this quite correct.  There is no right to anything just because the drafters of an agreement might have intended it.  To the contrary, there is a principle in the law that anything considered but rejected for the agreement was probably deliberately rejected.  So, I cannot hazard a guess as to what Ron Cain’s lawyer is suggesting.  But, generally, under Texas law, there is no right to severance pay.  The only right to severance would be a matter of contract, if there is a contract.  

Not to mention that the City Manager’s conduct is being investigated.  This request sounds a little "nervy."  

Sigh, our Texas Supreme Court is at it again.  In a recent decision, the Court conflated personal injury claims with sexual harassment and other froms of discrimination.  See Waffle House, Inc. v. Williams.  The Court found that claims based on assault and negligent supervision are preempted by the Texas Commission on Human Rights Act.  The TCHRA is the state version of Title VII of the Civil Rights Act of 1964.  The TCHRA prohibits discrimination based on sex, race, national origin and other classifications.  The Court found that the TCHRA provided the exclusive remedy for all conduct related to discrimination.  Formerly, tort claims or personal injury claims would be in addition to, not in lieu of discrimination claims.  

As the dissent points out, this means that if Joe repeatedly slams Mary up against the wall at work, then Mary can sue Joe for assault and battery.  But, if Joe also gropes Mary while repeatedly slamming her against the wall, then Mary can only sue for discrimination.  One major difference is that the TCHRA is limited to $300,000 in emotional damages and punitive damages. But, a claim based on assault and battery would have limited or no dollar limit.  See dissent.  

The $300,000 cap suffices for many claims.  The $300,000 cap applies to the largest employers.  It includes punitive damages and compensatory damages.  Compensatory damages are intended to compensate a victim for emotional suffering.  But, the cap is not enough for some claims.  For example, would $300,000 be enough in a discrimination case also involving rape? Money never truly compensates for the worst abuses.  But, $300,000 would not be enough damages for some cases.  In the case of Jones v. KBR, the victim was raped repeatedly and then confined in Iraq by her employer.  Would $300,000 be enough for the Jones case?

Or, if the employer has less than 100 employees, the punitive damages and compensatory damages would be capped at $50,000.  Would $50,000 suffice for the worst claims involving rape or assault?

The ruling suggests judicial activism.  The issue was not even addressed by the parties.  The Supreme Court refers to a tangential reference by the employer before the lower court.  But, the issue was not presented before the Supreme Court itself.  

The TCHRA is supposed to track the federal equivalent, Title VII, but this ruling directly contradicts Title VII precedent. 

And, ultimately, in this case, the jury had awarded $3.46 million in punitive damages.  The trial court then converted that award into an award of $425,000 for past compensatory damages and $425,000 in punitive damages, due the cap for personal injury claims.  The Texas Supreme Court once against trumps a jury decision.  

 

 A state district judge was selected for a jury in Dallas County.  Judge Carlos Cortez was shocked that he was not stricken by one side or the other.  But, he says he enjoyed the experience.  He declined to serve as jury foreman, because he wanted to watch the process.  He eventually became the lone dissent, as the other five members voted to find no liability on the part of the defendant in a car wreck case.  See report.  

 It was significant news when a class action lawsuit against Wal-Mart was certified a few weeks ago.  Class action lawsuits are always significant, but especially so when the employer is Wal-Mart.  I talked previously about the court ruling allowing the class certification.  See blog post.  

Now, someone at Wal-Mart leaked a report to the NY Times regarding an investigation made into Wal-Mart’s potential bias against women in the mid-90’s.  See NY Times report.  At Wal-Mart’s request,  prominent law firm, Akin, Gump Hauer and Feld looked into possible gender issues at Wal-Mart’s request.   The firm found wide-spread disparities in how women were hired and how they were paid.  The law firm, a well-known defense firm, urged the company to take several steps to make the system more fair, to avoid possible liability.  The report was released internally in 1995. The class action lawsuit was filed in 2001 by seven women.  The class action suit is styled Dukes v. Wal-Mart.  

This report could upset the balance.  Contrary to the NY Times report, such evidence could be admissible.  There are many cases holding that evidence of past bias is admissible, even if that past evidence was intended for internal review.  In this instance, portions of the report describing pay disparities might be admissible to show knowledge or intent on the part of Wal-Mart regarding gender discrimination.  The only hiccup is the fact that Akin, Gump performed the investigation.  So, the current defense law firm can argue this was attorney work product or attorney-client privileged.  Law professor thinks the report will not be admissible in court.   

I mentioned several weeks ago that Wal-Mart is one of the more difficult employers to sue.  They are known for obstreperous litigation tactics.  This report may well set the stage for a large settlement against a difficult to sue employer.