So, fewer “managers” will be eligible for overtime. The Department of Labor raised the salary rate at which overtime would apply. I previously wrote about this change here. The salary level for certain low level managerial jobs is currently $23,660. If a low level manager is paid that amount or less, s/he would be entitled to overtime. So, employers had some incentive to make persons who should be hourly “managers” in name only. See CBS news report.

The new regulation takes effect in December. Employers have time to become familiar with the new requirements.

Well, it looks like Monique Rathbun is dropping her lawsuit against the Church of Scientology. See San Antonio Express News report. I first wrote about that strange lawsuit here. Ms. Rathbun filed a motion asking that her suit be dropped. She did not provide a reason for the dismissal. She fired her lawyers a few months ago. They were surprised since they won their appeal at the Court of Appeals and expected similar success at the Texas Supreme Court.

Litigation is like that. Like people, lawsuits are always unpredictable.

One of the unintended consequences of arbitration is what to do when arbitration is invoked? Employment arbitrations typically start with an employment lawsuit. The employee often forgets s/he had even signed an arbitration agreement. So, the employee files the lawsuit, not anticipating a claim for arbitration. Then, the employer pulls out the arbitration agreement from dusty files. The employer invokes arbitration. What happens to the lawsuit? Many employers insist the employee dismiss the lawsuit outright.

But, the Fifth Circuit in Fonseca v. USG Insurance Services, Inc., found that to be error. In Fonseca, the employee dismissed her lawsuit when arbitration was invoked. But, later the employer failed to pay the arbitral fees. AAA then dismissed the arbitration, because the employer failed to pay the required fees. All this takes months to evolve. Months later when AAA dismissed Ms. Fonseca’s arbitration claim, the statute of limitations had passed for the plaintiff. It was too late for her to then re-file her former lawsuit. On appeal, the plaintiff argued that the arbitration proceeding tolled the statute of limitations. That is, she argued that the time period was postponed while her claim languished with AAA.

No, said the Fifth Circuit. Prior caselaw states that a arbitrations do not toll the statute of limitations. Filing an arbitration claim does not stop the clock. She should have requested a stay of the original lawsuit, said the court. See court decision here. That is, the Fifth Court said she should have retained the lawsuit, not dismiss it, and simply ignore it while the arbitration claim proceeds. One wonders if USG deliberately failed to pay the arbitration fees hoping for this result.

The remarkable thing is that the employee is in arbitration only because the employer pulled some long-forgotten agreement from an old folder somewhere. Yet, when the employer fails to pay its fees, it suffers no repercussions. The central fallacy of arbitration is that it was never intended for typical consumers. It was intended for generally business savvy large corporations and labor unions. Employees and consumers are paying the price for this poorly designed private system of justice.

Obesity is sometimes referred to as a growing epidemic. There is more obesity today. But, obesity in itself does not rise to the level of a disability, according to a recent Eighth Circuit Court of Appeals decision. In Morriss v. BNSF Railway Company, No. 14-3858 (8th Cir. 4/5/2016), the plaintiff was 5’10” and weighed 285 pounds. He was at one time “pre-diabetic,” but as of the time when he applied for a job with BNSF, he suffered from no particular diagnosis. Mr. Morriss had a body mass index of 40.9 for one physical exam and 40.4 at another physical exam. BNSF had a policy against hiring anyone for a safety position with a BMI greater than 40. The plaintiff lost on summary judgment at the district court level.

The plaintiff appealed on the grounds that he was regarded as having a disability. The Eighth Circuit disagreed. It said to qualify as a disability under the ADA, there must be a physical impairment that falls outside the normal range and that impairment occurs as a result of a physiological disorder. The plaintiff cited more recent cases based on the ADA Amendments Act that found there need be a physiological disorder only when the weight falls within the normal range. But, said the court, Congress did not change the definition of physical impairment when it amended the ADA. It did change the legal standard, but did not change the definition of physical impairment. And, that definition requires there be some underlying physiological disorder.

The court then found that the employer did not regard Plaintiff as having a disability. Instead, it regarded him as having physical characteristic. So, yes the employer could regard him as having a physical characteristic that could lead to future medical problems. See decision here. The Eighth Circuit joins the Second and Sixth Circuit in finding that obesity alone does not qualify as a disability under the ADA.

Regardless of this decision, as the population becomes heavier, I expect we will see more litigation over this issue.

The continuing saga of the San Antonio Police Officers Association lawsuit has lead to a court ordered mediation. The lawsuit is currently on appeal with the Fourth Court of Appeals here in San Antonio. The City filed a motion seeking that the parties be ordered to mediation. See San Antonio Express News report. Mediation will not work unless both sides are ready to discuss settlement. So, court-ordered mediation rarely works. It may be that the Fourth Court of Appeals, for whatever reason, believes the union is ready to talk. Up to now, the union has obstinately insisted that the City drop its lawsuit before it consents to talks.

Sometimes, in a hearing, one or both of the parties will say something verbally they would not say in writing indicating they are ready to discuss settlement. Unless that sort of verbal signal occurred, the court ordered mediation will likely lead to nowhere. The San Antonio Police Officers Association has been so public in its opposition to any talks so long as the lawsuit is pending that they really cannot back down, now.

There are many ways to negotiate. But, one of the hardest ways to negotiate is to draw a line in the sand. Ultimatums rarely work.

As if to prove that a person can file suit about anything, Professor James Tracy has sued the Florida Atlantic University over his termination. Mr. Tracy is the person who some months ago denied that the Sandy Hook massacre occurred. The parents of one young victim, Noah Pozner, 6 years old, claimed that Mr. Tracy harassed them and challenged them to prove their son existed. The professor was reportedly taunting the parents. He was fired last January.  Mr. Tracy was previously reprimanded in 2013 for writing on his blog that the Sandy Hook massacre was staged and for questioning the validity of other mass shootings. See CBS news report.

He has filed suit alleging First Amendment violations and wrongful termination. It is true that a state agency may not take action against an individual for expressing an opinion in a public way. But, harassing or taunting is not protected free speech. The parents of Noah Pozner described the harassment in an opinion piece published in a Florida newspaper. So, the employer can show it relied on the perception of other persons. The school will not even have to argue it believed Mr. Tracy was harassing. It can argue simply that it relied on a victim’s parents.

Too, it is one thing to have strange ideas. But, when the strange idea is part of the lawsuit, then one’s credibility starts at a deficit. Mr. Tracy’s case will be a difficult one from the get-go.

On-call scheduling has not been well received. It is a new trend in reducing personal costs. But, it causes workers substantial stress, since they do not know until a few hours before or the night before whether they will be working. This late notice makes arranging child care virtually impossible. Attorneys general from eight states and the District of Columbia are investigating the practice. So far, they have simply sent letters seeking payroll records and policies. But, those letters prompted some large companies to drop the practice. See ABA Bar Journal report.

I would expect on-call scheduling would have greater impact on female workers, since they are more often the workers arranging child care. So, this sort of practice would impose a greater burden on women. The practice would then constitute disparate impact on female workers. I could also see how such scheduling could also aversely impact workers with disabilities. This sort of business practice may cost an employer much more over the long-term than it saves near term.

I am not surprised really. A young Iraqi man was booted from a Southwest Airlines flight after he spoke Arabic on his cell phone. He was talking to his uncle and describing an event earlier that week at which the head of the United Nations, Ban Ki-Moon, had appeared. In closing the phone call with his uncle, he had mentioned he would call him later insha’ Allah, a common Arabic phrase meaning “God willing.” He was telling his uncle he would call him later, God willing. He noticed as he hung up that a nearby woman was staring at him. He silently hoped he would not be detained for speaking Arabic. But, he was detained. Police officers arrived within two minutes and told him he had to leave the plane.

Southwest Airlines simply said they were apprised of threatening comments aboard the airline. After being removed, Khairuldeen Makhzoomi, was approached by a Southwest employee who spoke Arabic. He spoke Arabic to the young man. But, the Southwest employee used words Mr. Makhzoomi did not understand. He asked the man to speak to him in English. The man fussed at the young man for speaking in Arabic, saying these are dangerous times. The FBI came. Assuming Mr. Makhzoomi was a terrorist, the agents tried to recruit him to give them names. They demanded to know about the “martyrs.” He said he never used that word. He only said insha’ Allah. Sigh. Every Arabic person I have ever known says insha’ Allah often. If that is the criteria for rooting out terrorists, then we will cast a very wide net, indeed.

In fact, being from Iraq and that he did not discuss his background in Iraq, that suggests he comes from a family of an interpreter. Many interpreters had to move to the U.S. because they were being targeted. Because they supported us during the war, the interpreters and their families also became targets. Once, they get here in the US, they still must remain quiet about their background to protect their families back home. So, it is very likely this young man had to leave Iraq because his family opposed terrorism. Yet, here in American, he is treated like the terrorists his family opposed. Given the nervous nature of my fellow citizens and the lack of familiarity with Moslems, I am not surprised at the lady’s reaction on the plane. But, the irony of where our fears take us is remarkable. See CNN news report.

Pen

In 2013, Prof. Cheryl Kelsey filed a lawsuit against Texas A&M at San Antonio alleging sex discrimination and unequal pay. According to her lawsuit, she was hired as an associate professor by Texas A&M for the 2009-10 academic year. She was promoted to assistant professor for the 2011-12 school year. Yet, she was still paid less than a male associate professor and less than a lower-ranking male assistant professor. See San Antonio Express News report.

Unequal pay lawsuits are the most difficult. The Fifth Circuit has imposed a stiff standard. The standard requires female employees to show their male counter-part is in a nearly identical situation. It is very difficult to show that two co-workers are in “nearly identical” work situations. For example, a female clerk may have the same job title as her male counter-part, yet have very different job duties. In other cases, employers have avoided liability by arguing that the male counter-part was hired under different circumstances.

Dr. Kelsey’s suit was filed in federal court in May, 2013. It settled a year later before any motion to dismiss or for summary judgment had been filed. It appears the evidence for sex discrimination was strong. The plaintiff did list eight other professors as witnesses, suggesting those eight would have supported her allegations. It always helps when a plaintiff can rely on some co-workrs to support her story. See Kelsey v. Texas A&M at San Antonio, No. SA-13-CV-383 (W.D. Tex. 6/5/2014).

images

So, now, the fox will guard the henhouse. Gov. Abbott appointed Julian Alvarez to the Labor position on the Texas Workforce Commission board. The three person board is supposed to include one member representing employers, one member representing labor, and one chairman. Gov. Abbott replaced the long-time labor board member, Ronald Congleton, with Mr. Alvarez, a former Chamber of Commerce CEO. … Okay. It never occurred to me the Chamber was such a staunch protector of the rights of labor. Most Chambers of Commerce do not claim to represent the views of the working man and woman. The AFL-CIO objects to the appointment of an employer representative to the labor slot. See Rio Grande Guardian report.

Even with the current board, TWC is generally opposed to claimants for unemployment compensation. I think we can expect that its stance will now grow more antagonistic to folks who get fired. And, that matters. Unemployment benefits are awarded only to those who get fired through no fault of his or hers. So, messing with those folks impacts all of us, in the end.