Recently in Work Category

When American Airlines instituted a $2 per bag charge for skycap service at Boston's Logan Airport, the workers' tip income dropped, some travelers seeing the change as a reason to stop tipping. A lawyer representing the workers sued American and a month ago a federal jury awarded them more than $325,000. In addition, the Massachusetts legislature recently enacted a law providing that businesses can be hit with triple damages in wage/hour disputes. Now American Airlines has decreed a complete ban on tipping at check-in at Logan, while also ordering its contractor to raise the skycaps' wages from the former nominal $5.15 an hour to $12-$15, well above the minimum wage but well below what they had been getting in tips. The workers' lawyer is of course charging retaliation and has asked a judge to forbid the change. (AP/Boston Herald, Boston Globe; Boston Herald editorial).

The newly composed work tested at 97.4 decibels, so the performance by the Bavarian Radio Symphony Orchestra was called off. "The cancellation is, so far, probably the most extreme consequence of the new law, which requires employers in Europe to limit workers' exposure to potentially damaging noise and which took effect for the entertainment industry this month." (Sarah Lyall, "No Fortissimo? Symphony Told to Keep It Down", New York Times, Apr. 20). For more on British and EU workplace-noise rules and their application to Scottish bagpipes, barking police dogs, gunfire during infantry training, military brass bands, and so forth, see Nov. 19, 2005.

Otherwise, the employer may just be setting itself up for wage-hour suits based on the premise that the after-hours use constitutes uncompensated overtime, says Mitch Danzig, "an attorney in the San Diego office of Boston-based Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. Danzig advises his clients to give BlackBerrys only to employees who are exempt from overtime laws. 'Plaintiffs' firms are trolling for this,' he said. 'Now what you're seeing on [plaintiffs'] firms' Web sites are, "Have you been assigned a BlackBerry or a phone? If so, give us a call."'" (Ashby Jones, WSJ law blog, Apr. 22). More: Jeffrey Hirsch, Workplace Prof Blog.

The law firm of Leeds Morelli & Brown has recently been embroiled in controversy over episodes in which it has settled batches of employment discrimination claims while contemporaneously entering agreements in which the defendants agree to hire it (the Leeds Morelli firm) for substantial sums. Now an African-American woman who was once a vice president at Prudential Insurance and then sued the company for racial bias as a Leeds Morelli client "is asking a federal judge to set aside an arbitration award, alleging her lawyers were given improper financial inducement to keep her claim and hundreds of others out of court. According to Linda Guyden, the company paid $5 million to the law firm representing her and 358 other employees, in return for which Prudential's total exposure was capped at $10 million and the claims were kept secret just as the company was about to be taken public." (Mary Pat Gallagher, "Bias Plaintiff Says Lawyer Sell-Out Warrants Vacating of Arbitration", New Jersey Law Journal, Apr. 8). For a cognate controversy over Leeds Morelli's settlement of employment claims with Nextel Corp., see Leigh Jones, "Columbia's Simon Blasts Professors' Role in Nextel Bias Case", National Law Journal, Nov. 26; Bluestone, New York Attorney Malpractice Blog, Feb. 12, 2007.

Employment litigation Hall of Fame? "Jérôme Kerviel, the rogue trader accused of losing his bank €5 billion (£3.9 billion) in one of the financial world's biggest scandals, has hit upon a new money-making scheme -- he is to sue his former employer [Société Générale of Paris] for unfair dismissal." (Adam Sage, "Jerome Kerviel to sue SocGen over sacking", Times Online (U.K.), Apr. 3).

As universities grow apprehensive of lawsuits filed by junior faculty hired for tenure-track positions but then passed over for tenure, they are accelerating the trend toward classifying more junior positions as non-tenure-track -- hastening, perhaps, the eventual demise of the tenure system entirely. (Robert Weissberg, Minding the Campus, Apr. 10). P.S. Our post has prompted a discussion at Workplace Prof Blog.

"The owner of a fashionable hair salon today denied being a racist after turning down a headscarf-wearing Muslim who applied for a stylist's job. Sarah Desrosiers, 32, told a tribunal it was vital that all her staff show off 'flamboyant' haircuts at the Wedge salon in King's Cross. And Miss Desrosiers, from Hackney, said 19-year-old Mrs Bushra Noah's headscarf was out of keeping with the 'ultra-modern, urban, edgy and funky' style of her business. ...Mrs Noah is claiming £34,000 in compensation for religious discrimination from Miss Desrosiers, who says she faces financial ruin if she loses the case." ("'Headscarf doesn't fit our funky image' says salon owner who turned down Muslim stylist", Daily Mail, Apr. 1).

"Soldiers' families reacted angrily after it emerged the Ministry of Defence awarded £202,000 to an office employee who strained his back picking up a printer. The 'disgraceful' decision left the civil servant with a larger payout than almost all the servicemen injured in Iraq and Afghanistan." (Stephen Adams, "MoD office worker gets £200,000 payout", Telegraph, Mar. 18).

I'm covering a judge's $100 million ruling against the coffee chain at Point of Law.

"Police officer Michael Harrington sued after getting snookered out of $44.63 in overtime pay. He later settled for $10,500 and sought about $46,000 in attorney fees. If that seems out of proportion, Los Angeles' 2nd District Court of Appeal agrees with you. The court reduced the fee award to $500. 'At the risk of understatement,' Justice Miriam Vogel wrote last week, 'there is no way on Earth this case justified the hours purportedly billed by Harrington's lawyers.'" (Mike McKee, The Recorder, Mar. 5).

I've got some thoughts on the subject at Point of Law.

Another instance of the decidedly Pickwickian sense in which some in the legal profession use the term pro bono:

Last year, a federal judge awarded nearly $1 million in attorney fees, costs and prejudgment interest to Skadden, Arps, Slate, Meagher & Flom in a case involving workers at a restaurant in New York's Chinatown. Chan v. Triple 8 Palace, No. 1:03-cv-06048 (S.D.N.Y.). The New York firm took the case pro bono in an attempt to collect unpaid tips on behalf of the workers.

The firm succeeded. But its request for attorney fees turned heads, especially since the workers received about $700,000.

"And you also had a large law firm telling everybody that they're doing the case pro bono," said Daniel A. Hochheiser, a partner at New York's Hochheiser Hochheiser & Inwood, which represented the restaurant.

"The general understanding of pro bono is that you're volunteering your time and effort without compensation, or without expectation of compensation," Hochheiser said.

The case is being compared in several quarters to the Seattle school-suit fee request discussed in this space Sept. 7 and Sept. 23. (Amanda Bronstad, National Law Journal, Feb. 8; Elefant; Cal Blog of Appeal (to whom we're happy to send the traffic). We briefly noted the Skadden fee ruling last summer.

P.S. Commenters point out -- and it's appropriate to note here as well -- that Skadden, unlike Davis Wright Tremaine, says it's giving away the fee award.

Looks like some have found ways to game the state's employment rules:

Five Long Island school districts falsely reported to the state that a part-time private attorney was a full-time employee in each district, enabling him to earn a public pension of nearly $62,000 and health benefits for life.

At the same time, the districts paid his law firm more than $2.5 million in fees, records show.

The attorney, Lawrence W. Reich, was listed as full time by five different school districts at once - Baldwin, Copiague, East Meadow, Bellmore-Merrick High School and Harborfields, according to records supplied by the New York State comptroller's office. In 2000, for example, he was credited with working 1,271 days in one year. The year before, he was credited with working 1,286 days....

Under Internal Revenue Service rules, a person cannot be paid both as an independent contractor and employee for the same job.

"Clearly, it's an attempt to manipulate the system so that a person can receive Cadillac fringe benefits that a person in the private sector would otherwise not be entitled to," said Paul Sabatino, a municipal lawyer who is also former Suffolk chief deputy county executive. ...

"I followed essentially a practice that was very common among my colleagues in the industry," [Reich] said.

(Sandra Peddie, "Five districts falsely reported lawyer job status", Newsday, Feb. 15).

"Plaintiffs' bar wish list"

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Workplace bullying bills

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As a Tennessee appellate court noted in rejecting Joan Frye's lawsuit against her hospital employer, “[T]he fact that a supervisor is mean, hard to get along with, overbearing, bellig­erent or otherwise hostile and abusive does not violate civil rights statutes.” Some legislators are trying to change that (excited in part by Suffolk Law Professor David Yamada's theory of making "bullying" actionable). The ABA Journal is the latest to note the trend. (The article unfortunately repeats the false smear against my colleague John Bolton.) As we noted last May,

Enactments of this sort could result in a large new volume of litigation; the ample scope for differences of opinion about what constitutes hurtful sarcasm or a humiliating memo style could turn the courts into ongoing "superpersonnel departments" dispensing financial balm for injured feelings in the workplace.
Employment attorney Richard Block is more blunt in the ABA Journal: “You’re talking about a lifetime annuity of work for employment lawyers.” Bills are pending in thirteen states.

"For a decade [Suresh Deman] sued universities - usually claiming racial bias over failed job applications - as he collected nearly £200,000 in payouts and cost the taxpayer an estimated £1million". After he had brought 40 actions he was declared a vexatious litigant and banned from further proceedings, but the ban did not cover Northern Ireland and he was soon there pursuing an 11-year-old claim against the Association of University Teachers and Officers (AUT). (Chris Brooke, "Race-claims lecturer beats legal ban to carry on suing after 40 discrimination claims", Daily Mail (U.K.), Nov. 19; A Tangled Web, Nov. 19; "In the news: Suresh Deman", Times Higher Education Supplement, Mar. 21, 2003).

Lilly Ledbetter Fair Pay Act


My monthly post for NPR's Talking Justice weblog is about their topic of the week, the Ledbetter Supreme Court case and the associated (and counterproductive) legislation passed by the House.

The fastest-growing area of employment litigation in recent years has been wage-and-hour class actions, perhaps the biggest subset of which are lawsuits charging that white-collar employees have been misclassified as exempt from hourly wage and overtime calculations. Like many big employers, IBM has been hit with such suits from lawyers seeking to represent thousands of its employees. Information Week:

The good news for those workers is that IBM now plans to grant them so-called "non-exempt" status so they can collect overtime pay. The bad news: IBM will cut their base salaries by 15% to make up the difference, InformationWeek has learned.

The plan has been greeted with howls of protest from affected workers.

The payroll restructuring goes into effect Feb. 16 and applies to about 8,000 IBM employees classified as technical services and IT specialists, according to internal IBM documents reviewed by InformationWeek and sources at the computer maker.

The plan calls for a "15% base salary adjustment down across all units with eligibility for overtime," the documents state. The move is a direct response to the employee lawsuits -- at least one of which has apparently been settled.

"To avoid protracted litigation in an area of law widely seen as ambiguous, IBM chose to settle the case -- and to conduct a detailed review of the jobs in question," the documents state.

The giant tech company also intends to lobby for modernization of New Deal era wage-and-hour laws which might allow it to restore the previous compensation methods. Good luck with that -- even if it can show that most of the workers involved would themselves favor salaried rather than hourly status, the political clout of unions and trial lawyers has stymied efforts at legislative reform in the past. (Paul McDougall, Information Week/, Jan. 23).

The blogosphere is abuzz with the new employee handbook for the Tribune Company (parent of the LA Times and Chicago Tribune), written by a layperson in plain English with verve and humor. [LA Times, Jan. 17; Lattman] "I'm amazed and amused at what lawyers get businesspeople to do," the author, Randy Michaels, the CEO for interactive and broadcasting, said about his efforts. Not to worry: the lawyers are ready to punish Tribune for that transgression. Bruce Nye also worries from the defense side.

No one suggests: Gee, if the litigation environment makes it impossible to have a short, plain, jocular, common-sense employee handbook, maybe there is something wrong with the litigation environment rather than the handbook? Or: why can't employees choose to work in an environment governed by a less stodgy handbook that is intended to promote a better workplace rather than by the cookie-cutter rules imposed by federal and state bureaucracies that require $500/hour employment attorneys to navigate safely?

(Update: Daniel Schwartz comments.)

On Point News reports that Janet Orlando's $1.7 million victory (May 2006) has been tossed by an appellate court that noted that it wasn't sex discrimination when the employer was spanking everyone (along with other questionable motivational techniques as diaper-wearing and pies in the face) and the jury instructions failed to make clear that conduct not aimed on grounds of sex was not sexually discriminatory. The opinion is "unpublished" so it will not be precedential.

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