Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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OSHA has issued serious and repeat citations to Home Depot U.S.A. Inc. at 9115 North Loop 1604 in San Antonio for lacking adequate personal protective equipment (PPE) and deficient injury recordkeeping. Proposed penalties total $70,500.

"As a large, national employer with a history of OSHA inspections and citations at other facilities, we are disappointed to find so many of the same or similar hazards at this facility," said Jeff Funke, OSHA's area director in San Antonio. "It's imperative that this company and all employers adhere to safety and health standards to prevent worker injuries."

OSHA said it began an inspection on July 30, which found that an employee had suffered chemical burns due to lack of appropriate PPE and training for protective equipment.

Serious violations cited include:

• failure to train employees on the proper use of protective equipment,
• failure to teach employees how to safely clean up spills and
• not assessing respiratory hazards.

 A serious citation is issued when there is a substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Repeat violations cited include failure to ensure eye protection was used; failure to provide adequate eye wash and quick drenching facilities; failure to properly record and describe injuries on the OSHA injury and illness recordkeeping form; and improper certification of the form. A repeat violation is issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. However, at the time this inspection began, the current repeat violation policy was within the last three years.

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The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court

The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."

This is certainly not news to those of us that work in the employment law trenches day in and day out.  Employment law is a different animal than most other types of cases that courts have to deal with.  Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken.  This has led to some pretty tortured legal tests and summary judgment standards across the country.  And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases.  I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases. 

The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore.  I think this may be going overboard a bit.  Employment cases are certainly not for the faint of heart but they are winnable. 

One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists.  This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal. 

Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law.  Employment cases are nothing like personal injury cases.  In my opinion, this is not an area of the law where lawyers should "dabble."  The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner. 

Source: WSJ Blog

Hat Tip: Ross Runkel

Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case.  Watch for it.

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While there may only be a few weeks left for the current administration, it certainly has not given up efforts to effect the country's HR laws.  Specifically, the Department of Labor is rushing its rule-making process to issue a rule making it more difficult for the government to regulate workers' exposure to toxic chemicals at work.  Here is an excerpt from a recent story in the New York Times:

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

If the administration manages to get the rule issued, the Obama administration will almost certainly begin efforts to repeal it as soon as they take office.  Repealing such a rule, however, can take a considerable amount of time.  In the meantime, the rule will have the force and effect of law. 

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