Podcast Time

IBM Sued in Massive FLSA Overtime Class Action Suit

IBM was sued in federal court Tuesday for allegedly not paying overtime to tens of thousands of rank-and-file employees. The suit was filed in U.S. District Court on behalf of three current and former workers, and seeks class-action status to represent computer installers and maintenance workers for IBM throughout the United States. The Plaintiffs' attorneys said they are seeking millions of dollars in back pay for employees of the world's biggest technology services provider. They are also considering punitive damages. According to the experts interviewed in this piece from the San Francisco Chronicle the practice of not paying overtime to workers who deserve it was widespread in the technology industry.

The lawyers who filed this action settled a similar case against Computer Sciences Corp. for $24 million and video game publisher Electronic Arts Inc. also agreed last year to pay $15.6 million to settle a class-action lawsuit by computer graphic artists who sought overtime compensation.

You can see the Plaintiffs' Attorneys' Pres Release regarding the filing here.

________________________________Don't forget to listen to our weekly Podcast:This Week in Employment Law.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Scrub your Documents Like an NSA Spook

The PDF for Lawyers blog reports that buried deep in the Federation of American Scientists site, is the NSA's guide for "sanitizing" Word and PDF documents. The NSA guide provides specific step-by-step instructions for redacting text and images, and handling metadata. It has illustrated instructions for scrubbing your documents. Perfect for that next document production session. And...no FISA court warrant is required!
Here is the .pdf of the NSA Guide.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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New Podcast - The Employment Law Update

We have been wanting to do a pocast for quite some time. For those of you unfamiliar with the term, "podcasting" was coined in 2004 when the use of RSS syndication technologies became popular for distributing audio content for listening on mobile devices and personal computers. A podcast is a web feed of audio or video files placed on the Internet for anyone to subscribe to. Podcasters' websites also may offer direct download of their files, but the subscription feed of automatically delivered new content is what distinguishes a podcast from a simple download or real-time streamingAnyway, our goal is to have a new podcast up and ready for your listening pleasure each Monday morning. We plan to cover stories from around the employment-law blogosphere with links to blog and news stories that we found particularly interesting. [Note to fellow bloggers - If, for whatever reason, you have any objection to our including references to your blog in our podcast, please let us know.]Like anything else in this rapidly changing media environment, this is an experiment. Please email us with comments or suggestions about the new podcast. We will report back our experience with the endeavor and whether we think it has any marketing potential in a later post.
For now enjoy this first edition of This week in Employment Law.Click here to listen.Click here to Subscribe (will link to Itunes or your designated podcast aggregator)Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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DOJ files first ever class action under USERRA.

The Department of Justice has filed a lawsuit against American Airlines, Inc., alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). According to the agency, this case represents the first class action complaint filed by the United States under USERRA.The complaint, filed in the U.S. District Court in Dallas, Texas, alleges that American Airlines violated USERRA by denying pilots Mark Woodall, Michael McMahon and Paul Madson employment benefits during their military service. Woodall and McMahon serve as pilots in the Naval Reserve. Madson serves as a pilot in the South Dakota Air National Guard.The complaint alleges that American Airlines conducted an audit of the leave taken for military service by American Airline pilots in 2001. The complaint further alleges that based on the results of that audit, American Airlines reduced the employment benefits of those of its pilots who had taken military leave, while not reducing the same benefits of those of its pilots who had taken similar types of non-military leave.

In completely coincidental and unrelated development, American Airlines issued a press release titled: American Airlines Thanks U.S. Military Personnel By Extending Special Fares And Other Offers

Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, a Employment Lawyer

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Martin Luther King: January 15, 1929 - April 4, 1968

Video Here

Five score years ago, a great American, in whose symbolic shadow we stand signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of captivity.But one hundred years later, we must face the tragic fact that the Negro is still not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the corners of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition.In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check -- a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksand's of racial injustice to the solid rock of brotherhood.It would be fatal for the nation to overlook the urgency of the moment and to underestimate the determination of the Negro. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.We must forever conduct our struggle on the high plane of dignity and discipline. we must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny and their freedom is inextricably bound to our freedom. We cannot walk alone.And as we walk, we must make the pledge that we shall march ahead. We cannot turn back. There are those who are asking the devotees of civil rights, "When will you be satisfied?" we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.Go back to Mississippi, go back to Alabama, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal."I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at a table of brotherhood.I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice.I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.I have a dream today.I have a dream that one day the state of Alabama, whose governor's lips are presently dripping with the words of interposition and nullification, will be transformed into a situation where little black boys and black girls will be able to join hands with little white boys and white girls and walk together as sisters and brothers.I have a dream today.I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.This is our hope. This is the faith with which I return to the South. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."And if America is to be a great nation this must become true. So let freedom ring from the prodigious hilltops of New Hampshire. Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!Let freedom ring from the snowcapped Rockies of Colorado!Let freedom ring from the curvaceous peaks of California!But not only that; let freedom ring from Stone Mountain of Georgia! Let freedom ring from Lookout Mountain of Tennessee!Let freedom ring from every hill and every molehill of Mississippi. From every mountainside, let freedom ring.When we let freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual,"Free at last! free at last! thank God Almighty, we are free at last!"Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Fifth Circuit Extends Mixed-Motive to FMLA

The Fifth Circuit recently issued an opinion in Richardson v. Monitronics International, Cause No. 05-10346 (December 21, 2005), extending the Desert Palace mixed-motive analysis to retalliation cases brought under the Family and Medical Leave Act. The Court has already extended Desert Palace to claims under the ADEA.In reaching its conclusion, the Court noted that its decision to extend mixed-motive analysis to the FMLA is supported by the Department of Labor's enforcement regulations. The regulations state that an employer may not discriminate against an employee who has taken FMLA leave, specifying by example that "employers cannot use the taking of FMLA leave as a negative factor in employment actions. See 29 C.F.R. § 825.220.
Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Interview with an Honest Boss.

OK, here is your funny for the week. Reader sent me an e-card and it is just too funny not to share. For all those that just wanted your boss to just tell you the truth...today is your lucky day.

Here's the link. Enjoy!Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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Texas Issues Long-Awaited Rules on Workers' Comp Networks

Somehow over the busy December, I missed that Texas has at long last released rules governing how workers compensation networks can be set up in the state. The idea is to improve the quality of health care provided through the comp system (shouldn't be hard given the travesty that is the current Texas comp system) while also containing costs.Lucky for me, Joseph Paduda over at Managed Care Matters Blog did not miss the news. It was also covered by InsuranceJournal.com. Texas Department of Insurance Commissioner Mike Geeslin is quoted on the subject:

I want to address a concern that has been raised concerning network care, that it is merely a discount program that will cut corners to save money. If workers' comp health networks are viewed only as a tool to reduce medical costs, without adding any value to the rehabilitation and care of the injured employee, then the networks are headed to failure. Many employers and injured workers with whom I have spoken have emphasized the need for best value, not care on the cheap or, conversely, excessive care. The more effective medical care that a worker receives, the sooner he or she will be back to productive work or to a point where their injury is manageable.

To that end, our network rules incorporate a number of quality assurance tools. Workers' compensation networks are required to be credentialed and must demonstrate that they have a formal complaint and dispute process in place. The networks are also required to track return-to-work statistics to see how well they are getting injured workers back on the job.

In addition, TDI researchers will compile data to assess each network's performance on a yearly basis in the form of a "network report card." The report card will allow comparisons between networks on a variety of measures, including access to care, health-related outcomes, return-to-work outcomes, employee satisfaction with quality of care, and health care costs and utilization of care.

You can find a copy of the new rules here.Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer k
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Supreme Court Set to Hear Argument in Title VII 15-Employee Jurisdiction Case

The Supreme Court is set to hear oral argument tomorrow in Arbaugh v. Y & H Corp., 380 F.3d 219 (5th Cir. 2004). [We previously discussed this case here when the Court granted cert.]Jenifer Arbaugh filed suit against Y&H Corporation (?Y&H?), asserting claims under Title VII. A jury found in favor of Arbaugh. Defendant filed a motion to dismiss (post-trial), contending that Y&H did not qualify as an ?employer? under Title VII because it did not employ 15 or more employees. The district court ordered both parties to conduct post-trial discovery on the issue. The district court later converted the motion to dismiss to a motion for summary judgment and entered an order vacating and reversing Arbaugh?s jury verdict and judgment based upon the determination that the court did not have subject matter jurisdiction.In this case, the Court is set to resolve the question of whether or not the 15-employee threshold in a Title VII case is jurisdictional or is just an element of proof. Professor Ross Runkel argues here that there isn't any reason to treat the definition of "employer" (including its exclusion of employers with fewer than 15 employees) as being jurisdictional as opposed to simply definitional. I tend to agree with him on this point. Unfortunately for Ms. Arbaugh, the Fifth Circuit didn't ask Ross or myself before writing their opinion. The distinction between whether the definition is jurisdictional or not is an important one. If the Fifth Circuit (along with the 4th, 6th, 9th, 10th, and 11th Circuits) is right, then the 15-employee threshold issue cannot be waived and may be raised at any time, even (as was the case in Arbaugh) after a full trial on the merits.
Related Documents:-Fifth Circuit's Opinion-Parties' Supreme Court Briefs (via Ross Runkle's excellent Employment Law Blog)Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer

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While we were out...

As you know, the Bulletin has been on hiatus for the last week or so for a holiday break. Now we are back, refreshed and ready to bring you more employment law goodness. First, however, we thought we would start by taking a look at what others were talking about in our absence:George's Employment Blawg has put up a comprehensive analysis of the recent NYC Transit strike entitled: Lessons from the NYC Transit Strike: Who's Right, Who's Wrong? A sample:

Many viewed the New York City transit strike just before Christmas as an illegal powerplay by a bunch of selfish "thugs" with unrealistic economic expectations. I'd have expected most of the vast numbers of New Yorkers whose daily commutes were disrupted to have shared this view.

However, apparently many New Yorkers and other observers sympathize with the strikers and are quite willing to overlook the strike's unlawfulness, considering it morally and economically justified. Some even see it as the long-awaited resurrection of the moribund American labor movement and a turning point in American "class warfare."

Strategic HR Lawyer Blog also went after this topic:

For those of you who think I might be swayed in favor of management here - you're right. The idea the employees are striking over free health insurance when most of the world doesn't get it for free bothers me. The fact that striking is illegal and they decided to do it anyway bothers me. The fact that employees making $60,000 are on strike resulting in other workers making far less having to walk to work bothers me even more. . . Lastly, having just returned from New Orleans . . . I really have no sympathy.

C'mon, tell us what you really think! Labor Prof Blog covered an interesting recent case out of the Middle District of Alabama concerning whether an individual worker should be judicially estopped from proceeding with her gender discrimination and retaliation claim under Title VII because she failed to list her pending Title VII claim as a potential asset for purposes of her Chapter 13 bankruptcy reorganization plan.And finally, Ross' Employment Law Blog covered several interesting developments over the break. First, the $172,000,000 verdict against Wal-Mart for wage law violations. Secondly, he covers a ruling against the Sidley Austin Brown & Wood law firm in its ongoing litigation with the EEOC over whether its "partners" are actually employees and, therefore, entitled to the protections of the ADEA. And lastly, Ross has a post and links to the Department of Labor's new regulations on the Uniformed Services Employment and Reemployment Act (USERRA).

Sexual Harassment, Pregnancy Discrimination, Age Discrimination, San Antonio, Employment Lawyer
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