Thousands Certified in FedEx Bias Case

Posted on September 29, 2005 by Christopher McKinney

Race discrimination litigation against FedEx grew exponentially this week when a federal judge granted class certification to thousands of workers at the shipping company.U.S. District Judge Susan Illston is allowing "thousands" of African-American and Latino hourly workers and "hundreds" of lower-level African-American managers in the company's western region to move forward with claims that FedEx Express has discriminated in issues involving pay, discipline and, in some cases, promotions.Lieff Cabraser Heimann & Bernstein partner James Finberg, who argued the motion to certify back in January, estimated the class of hourly workers will number about 10,000 and the class of managers just shy of 1,000.The class alleges that FedEx Express -- a unit of FedEx Corp. that performs overnight deliveries -- has a culture of hostility toward minorities and that the company turns "a blind eye," allowing racial bias to infect performance evaluation, promotion, compensation and discipline decisions.Here's a link to the Law.com article.
Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Is Evacuee Favoritism in Hiring Fair?

Posted on September 25, 2005 by Christopher McKinney
Troubling article at the Wall Street Journal this week discussing a supposed backlash among locals in Dallas, San Antonio and other cities as a result of local employers making an extra effort to open jobs for the victims of hurricane Katrina and giving preferences over locals in hiring. Here is a taste:

In places such as Houston, Baton Rouge, La., and San Antonio, where evacuees have arrived en masse, employers have blended hiring needs with a groundswell of compassion. Local outlets of McDonald's Corp., Exxon Mobil Corp., PetSmart Inc. and others have visited evacuee sites to pursue Katrina victims. Flyers at one shelter last week read, "San Antonio Jobs for Katrina Evacuees," and listed more than 60 employers with contact names and phone numbers. Each had called a local radio station vowing to offer jobs to hurricane victims in the city.

That irritated Joe Dominguez, a 55-year-old construction worker in San Antonio out of a job for seven months. He fumed that local businesses were making an extra effort to open jobs for the victims. "It's not right," he said. "I can understand they need to work, but a lot of people [who were already] in San Antonio need jobs, too."

As you may know, the Employment Law Bulletin operates its vast legal media empire from its headquarters here in San Antonio. While this is purely anecdotal, I must let you know that we have not come across any locals begrudging benefits being given to these people that have already gone through so much. Honestly, the influx of new residents from Louisiana will likely cause a short-term burden on the cities they have been moved to. I know that here in San Antonio (a city that is quite a bit smaller than both Dallas and Houston) the placement of those fleeing Katrina in apartment housing has caused a shortage for same. With regard to jobs, however, I do not see a substantial negative effect. San Antonio has one of the lowest unemployment rates in Texas. Many of the jobs being offered to Katrina victims were undoubtedly created by employers seeking to help out in any way they can. For the most part, I seriously doubt they are taking jobs away from locals.
This all kind of nibbles around the edge of the broader and more important issue of the amount of poverty that has been allowed to continue unaddressed in New Orleans and other urban areas for so many years. Unfortunately, it takes something as earth shattering as a natural disaster to force the nation to closely examine the lives of those Americans that are not being brought along in our economic and social progress. George Lenard of George's Employment Blawg recently posted a comment on the Monster.com blog that addressed this issue with clarity and thoughtfulness. It is so good that I post it in its entirety here:

Part of a much larger and very important series of questions.Katrina exposed, for the entire world to see, the little Third World that is inside every major American city. For the moment, all manner of "relief" efforts are directed at people who are survivors of this natural disaster. But prior to the hurricane, our society and government was in large part all too willing to ignore the ongoing inner city socio-economic disasters disproportionately impacting African-Americans.Once the immediate crisis and charitable impulse fades, will public and private sectors continue active support of these hurricane survivors?Will the poorest of them fade back into quiet poverty?If not, will the type of resentment you describe continue to fester?Or will America rise to the occasion and realize that one of the many things we have learned from this disaster is that we cannot afford to continue to fail to develop the largely African-American human resources living in broken, crime-ridden neighborhoods and sending their children to unacceptable schools?Every American, no matter their color and background, no matter where they live, and no matter whether they were natural disaster victims, can be part of the problem or part of the solution.Let's start making better choices.

Amen to that.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Supreme Court Oral Argument Preview

Posted on September 21, 2005 by Christopher McKinney

Scheduled Argument Date: October 3, 2005Case: IBP, Inc. v. Alvarez (03-1238); Turn v. Barber Foods, Inc. (04-66) (Joint Argument)Issues Presented:

Under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"), as amended by the Portal-to-Portal Act, 29 U.S.C. §§ 251-262 ("Portal Act"), an employee must be compensated for the time their employer requires them to spend donning and doffing protective gear. In the combined oral argument for Tum v. Barber Foods, Inc. and IBP, Inc. v. Alvarez, the Supreme Court will consider an important related question--whether an employee is also entitled to compensation for time spent waiting at stations where required safety and health equipment is distributed, donned, and doffed, and traveling to and from these stations to work sites at the beginning and end of each workday.Under the FLSA, employers must compensate employees for activities performed during the workday. However, the Portal Act, which amended the FLSA, removed employers' obligation to compensate employees for two categories of activities performed outside the workday. These activities include: "(1) walking, riding, or traveling to and from the actual place of performance of the principal activity, and (2) activities which are preliminary or postliminary to said principal activity or activities." Tum and Alvarez ("Employees") contend that walking and waiting at safety stations are inextricably linked to the donning and doffing process, and are principal activities that demark the beginning and end of the workday. The Employees also argue that these activities occur within the workday, and thus, the above Portal Act exceptions are inapplicable. Public policy considerations, such as employee safety, financial welfare, and corporate profitability will figure prominently in the Supreme Court's resolution of these conflicting appellate court rulings. The outcome will also profoundly impact workers' salaries, manufacturing costs, and corporate outsourcing policy.
Here is a detailed preview analysis from the Legal Information Institute.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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EPLI Basics

Posted on September 20, 2005 by Christopher McKinney

Helms, Mulliss, Wicker's "Workcite" webpage has a good post on the basics of EPLI insurance. Employment defense attorneys differ sharply on the advisability of such policies. Certainly it is a complicated cost-benefit analysis that any company must go through before signing on for such policies. It is no secret that a defendant loses some amount of control over and, in some cases, quality of legal representation when it is provided through an insurance carrier. I have seen some policies that (given application of typical caps in employment cases) I have a hard time seeing how the insurer would ever be liable under the policy. Long story short: Do your homework, shop around, and consider consulting with an employment attorney prior to purchasing one of these policies. This article is a good place to start.

Hat tip to Strategic HR Lawyer for the link.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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New route to corporate profits: Dump the company pension on the taxpayers.

Posted on September 18, 2005 by Christopher McKinney
The Pension Benefit Guaranty Corporation has become an increasingly popular option for private-capital funds and other investors who are seeking to spin investments in near-bankrupt industrial companies into gold. The key is to shift the responsibility for pensions, which weigh as heavily as bank loans on a company's balance sheet, to the pension corporation. This usually means that the workers don't receive the full pension they were promised as an employee and can be devastating to retirees. Unfortunately, the government has thus far done little to discourage the practice.
Here is the story from Sunday's New York Times.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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"[T]he Hooters ... work environment is one in which joking and innuendo based on female sex appeal is commonplace." - Handbook

Posted on September 15, 2005 by Christopher McKinney

Ever wonder what Hooters Employee Handbook says? Well today is your lucky day my friends. Brought to you by our friends at The Smoking Gun.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Delta Employee Fired Because of Blog Sues Airline

Posted on September 9, 2005 by Christopher McKinney

A former Delta Air Lines flight attendant who says she was fired weeks after she posted photos of herself in uniform on her Internet blog has filed a sexual discrimination lawsuit against the airline. Ellen Simonetti filed the lawsuit on Wednesday in U.S. District Court in Atlanta, saying that male colleagues with potentially insensitive material on their blogs have gone unpunished. The case could plow fresh legal ground on whether a company can take action against an employee for operating a blog. Read the full story.
Here is a link to her blog: Queen of the SkySexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Friday Rant: Bush Administration Uses Hurricane to Cut Wages of Louisiana Workers

Posted on September 8, 2005 by Christopher McKinney
Few would accuse the Bush administration of being a friend to working people but today's move really did surprise me. President Bush issued an executive order Thursday allowing federal contractors rebuilding in the aftermath of Hurricane Katrina to pay below the prevailing wage. Bush's executive order suspends the requirements of the Davis-Bacon law for designated areas hit by the storm. The administration is using the devastation of Hurricane Katrina to cut the wages of people desperately trying to rebuild their lives and their communities.
Here is the story from Reuters.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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Is Night Blindness a Disability?

Posted on September 7, 2005 by Christopher McKinney

The Second Circuit says yes. Capobianco v. City of New York (No. 04-3230) (2nd Cir. Sept 1, 2005).

Plaintiff - Capobianco - was hired as a New York sanitation worker. He had no problems until he was shifted from the day shift to the night shift. It was then learned that he could not function at night due to congenital night blindness. The Court discussed the evidence regarding his condition:

"[A]fter 20 minutes in darkness, Mr. Capobiancorequires more than 100 times as much light in order to see as does a normally-sighted person." Dr. Brodie also explained that "[c]ongenital stationary night blindness is quite rare, occurring in about 1 individual in 10,000." Capobianco was born with his night blindness and the condition is permanent and "stationary": it will not get better or worse with age. The condition cannot be corrected with surgery, glasses, contact lenses, or other optical means. Capobianco does not have "myopic macular degeneration." Capobianco's night blindness does not limit him in performing the daily activities of his life, as long as the lighting conditions are adequate. For example, he is able to care for his young daughter, including driving her to school in the morning and picking her up at 5 p.m. He is able to perform typical household tasks such as housecleaning and routine chores, including taking garbage to the curb at night and picking up at night toys or other items left in the front yard. He exercisesregularly, including walking, jogging, and playing tennis, and walks his dog both at night and during the day. He also has an extensive work history, and has been able to work as an ambulance driver, a security guard, a toll taker, a postal worker, and an office worker. However, Capobianco is able to engage in these activities only during the day.

In reversing summary judgment for the Defendant, the Court stated:

A jury could surely find, from this combination ofcircumstances, that Capobianco's night blindness significantlyrestricts the manner in which he can see as compared to the"average person in the general population." Seeing is afundamental life activity of central performance, and the averageperson can see and function at night and in dim light. Areasonable jury could find that driving, walking, running,biking, and engaging in other outdoor activities and excursionsare important activities in the lives of most people and that theinability to engage in these activities at night or in dim light(which can encompass fourteen hours of the day in our part of theworld) is not just a difference in sight but a severe restriction, i.e.,a substantial limitation, on the ability to see.

The City also lost on "regarded as" grounds. They were probably not helped by this series of memos from the departments Personnel Management Division:

The Personnel Management Divisionrecommends termination for probationarysanitation worker Anthony Copobianco [sic].

He is unable to perform in title duties of asanitation worker due to Myopic MacularDegeneration. Mr. Copobianco [sic] wasplaced on a limited duty Medical Assignmentby the Medical Division shortly after he washired.

Later, unhappy that Mr. Capobianco had been accommodated by the department by being given day work (something it obviously had in abundance), the Personnel Management Division took another shot:

On June 11, 1999 I sent the attached letter to you recommending termination of [Capobianco] due to Myopic Macular Degeneration. The eye problem he has hampers his ability to perform the duties of sanitation workers, especially during the night time hours.If the disease is continuing to degenerate, why are [we] waiting to terminate him? Why did the clinic resume him to regularduties on a days only tissue?

It is unfortunate when an organization's HR department works to undermine mid-level management's attempts to do the correct (and legally required) thing. In this case, it certainly helped Mr. Capabianco get his case to a jury.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Katrina Frustration

Posted on September 5, 2005 by Christopher McKinney

OK, I've kept my mouth shut for an entire week with regard to my frustration over the government's lack of response to the Katrina disaster. We have all seen the terrible pictures of those poor souls abandoned to their own devices for days and days in New Orleans following the storm. To say that I am frustrated is putting it mildly. Luckily, someone has voiced my thoughts better than I could myself. Keith Olbermann's blog contains the transcript of his commentary from his "Countdown" program last night. If you missed it in MSNBC last night (and their ratings suggest that you may have), then take a moment and read it here. Here are a few money quotes:

Secretary of Homeland Security Michael Chertoff said it all, starting his news briefing Saturday afternoon: "Louisiana is a city that is largely underwater..."Well there's your problem right there.

If ever a slip-of-the-tongue defined a government's response to a crisis, this was it.

The seeming definition of our time and our leaders had been their insistence on slashing federal budgets for projects that might've saved New Orleans. The seeming characterization of our government that it was on vacation when the city was lost, and could barely tear itself away from commemorating V.J. Day and watching Monty Python's Flying Circus, to at least pretend to get back to work. The seeming identification of these hapless bureaucrats: their pathetic use of the future tense in terms of relief they could've brought last Monday and Tuesday -- like the President, whose statements have looked like they're being transmitted to us by some kind of four-day tape-delay.

But no. The incompetence and the ludicrous prioritization will forever be symbolized by one gaffe by of the head of what is ironically called "The Department of Homeland Security": "Louisiana is a city..."***No one is suggesting that mayors or governors in the afflicted areas, nor the federal government, should be able to stop hurricanes. Lord knows, no one is suggesting that we should ever prioritize levee improvement for a below-sea-level city, ahead of $454 million worth of trophy bridges for the politicians of Alaska.

But, nationally, these are leaders who won re-election last year largely by portraying their opponents as incapable of keeping the country safe. These are leaders who regularly pressure the news media in this country to report the reopening of a school or a power station in Iraq, and defies its citizens not to stand up and cheer. Yet they couldn't even keep one school or power station from being devastated by infrastructure collapse in New Orleans -- even though the government had heard all the "chatter" from the scientists and city planners and hurricane centers and some group whose purposes the government couldn't quite discern... a group called The U.S. Army Corps of Engineers.

And most chillingly of all, this is the Law and Order and Terror government. It promised protection -- or at least amelioration -- against all threats: conventional, radiological, or biological.

It has just proved that it cannot save its citizens from a biological weapon called standing water.

Mr. Bush has now twice insisted that, "we are not satisfied," with the response to the manifold tragedies along the Gulf Coast. I wonder which "we" he thinks he's speaking for on this point. Perhaps it's the administration, although we still don't know where some of them are. Anybody seen the Vice President lately? The man whose message this time last year was, 'I'll Protect You, The Other Guy Will Let You Die'?

I don't know which 'we' Mr. Bush meant.***As we emphasized to you here all last week, the realities of the region are such that New Orleans is going to be largely uninhabitable for a lot longer than anybody is yet willing to recognize. Lord knows when the last body will be found, or the last artifact of the levee break, dug up. Could be next March. Could be 2100. By then, in the muck and toxic mire of New Orleans, they may even find our government's credibility.

Somewhere, in the City of Louisiana.

And then this from the Daily KOS blog, this transcript of a recent meeting between Homeland Security chief Michael Chertoff and FEMA director Michael Brown:

Homeland Security chief Michael Chertoff and FEMA director Michael Brown make headway...

Chertoff: All I'm tryin' to find out is what's the guy's name in charge of food and water.
Brown: Oh, no, wait a minute, don't switch 'em around. What is in charge of evacuation.
Chertoff: I'm not askin' you who's in charge of evacuation.
Brown: Who is on food and water.
Chertoff: I don't know!
Brown: He's in charge of media spin...now we're not talkin' 'bout him.
Chertoff: Now, how did I get on media spin?
Brown: You mentioned his name!
Chertoff: If I mentioned the media spin guy's name, who did I say is in charge of media spin?
Brown: No...Who's in charge of food and water.
Chertoff: Never mind food and water, I wanna know what's the guy's name in charge of media spin.
Brown: No, What's in charge of evacuation.
Chertoff: I'm not askin' you who's in charge of evacuation!
Brown: Who's in charge of food and water.
Chertoff: I don't know!
Brown: He's in charge of media spin

OK, enough venting for the moment. Now let's get back to making sure these people are taken care of properly.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Blog for Relief Weekend

Posted on September 2, 2005 by Christopher McKinney

More than a thousand bloggers across the country are joining together this weekend to encourage our readers to get out ye old checkbook and donate to their favorite disaster relief charity in favor of Hurricane Katrina Relief efforts. A tote board of blog reader donations is being kept over at Truth Laid Bear, so be sure and register your gift there.

Big Mac blogs from here in San Antonio, where we are getting a chance to see first-hand some of the human toll of this disaster. Likewise amazing has been the outpouring of support and charitable assistance from regular people of all walks of life. But we have to remember that this will be a long-term project for us all. We are all going to have to do what we can to keep looking after these people for the next several months as they try to put their lives back together. I have great confidence in the American spirit and have little doubt that it will be achieved. But, it is going to take a long-term commitment on behalf of all of us to see that it gets done.

If you are looking for a place to give, see Glenn's Donation Round-up Post over at Instapundit.comTake care and have a great holiday weekend.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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