And maybe I’m getting a little out of date, but I don’t believe being “exempt” means you can get paid nothing.

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I’m sure none of the demagoguery about Ricci thought that this consequence could have been predicted. It was obvious.

Most likely, the idea is to continue to problematize Title VII until it seems entirely unworkable. Other than that, I don’t see the strategy behind the demagoguing the these two cases. I don’t think many of the fever pitched voices about Ricci ever really cared about employers or employment.

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Many of the jobs lost during the recession are not coming back.

Period.

For the last two years, the weak economy has provided an opportunity for employers to do what they would have done anyway: dismiss millions of people — like file clerks, ticket agents and autoworkers — who were displaced by technological advances and international trade.

On the one hand, having a flexible, technology-based practice that has no need for administrative employees is the best thing I ever did. I doubt that the cost of a worthwhile assistant, all the necessary equipment and space would actually net me any money. On the other hand: what on earth do we do with these people? These aren’t welfare queens. These are people that have worked most of their lives, mostly in jobs that were not foreseeably going to be eliminated any time soon. This seems to happen with great frequency in our globalized economy.

My guess is that we need—more than expanded unemployment or other safety net measures—a massive expansion of community colleges with programs focusing on career switches for adults instead of mostly two-year degrees for teenagers. Yet community colleges are being slaughtered in California lately.

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The cops are into this, but it raises some interesting issues. Take a look.

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Why?

Well, one thing that should be pointed out about the language for qualifying for the small business tax credit in the health care reform bill:

A full-time “equivalent” employee is one who works 2,080 hours per year, but in doing the calculation, you do not have to count more hours than that per employee. (§ 1421 (a)(2)(B) of the bill which will be 26 U.S.C. § 45R tomorrow at 11:15 EDT). This makes it easier to qualify for the $50,000 per year per employee threshold. And part time employees, naturally, won’t “fill up” one spot, so 50 people working less than half time may still leave you qualifying.

You can find out the numerous other details elsewhere, but I have not seen this reported widely.

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In your long-range planning, consider that.

UPDATE 3/28/2010: I should Google before I conjecture. Apparently, this phenomenon has been very closely studied. Strangely, it just wasn’t part of the non-debate about reform. According to the article I linked to, 1.6m people are locked into jobs they don’t want because of reliance on health benefits.

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For the most part, it is not taught in law school, at least not as a subject in and of itself. Yet it is part of the basic curriculum for all modern military officers.

Money tends to dominate civil litigation strategy. The party with the most money often takes on an attrition strategy—the kind where you see motions challenging everything from the service of the summons to pages of boilerplate objections in form interrogatory responses. Ultimately, as in warfare, attrition can be defeated by maneuver, especially if at the end of the day you have dominant facts on your side. So, giving battle early on favors the moneyed party, giving battle later favors the factually superior party (not at all necessarily different).

As most of us implicitly know, this situation is altered a lot by attorneys’ fees cases, where the risk of joining battle can be almost entirely borne by one side and even a blitzkrieg of attrition litigation at the beginning can backfire.

There are books out there such as Lawyer’s Poker—a bit more fashionable, but the analogy doesn’t really hold. Poker is almost entirely tactical, even if you can learn a lot about psychological tactics. I’ve also seen Sun Tzu on more than one attorney’s bookshelf. There are some important maxims in there, but it is more difficult to apply by analogy to litigation than manuals on set piece battles involving field armies and Sun Tzu is not an analytical work.

Here’s a list of books on strategy:

• The Strategikon by Emperor Maurikios of Byzantium
• The Prince by Niccolo Machiavelli
• On War by Carl Von Klausewitz
• The Art of War (Not Sun Tzu) by Jomini
• Strategy: The Logic of War and Peace by Edward Luttwak
• The U.S. Army Leadership Field Manual
• for the example nonpareil of relational maneuver, read about the Emperor Herakleios who took his field army deep into enemy territory leaving the entire empire unguarded, Constantinople besieged by Avars on one side and the Persians on the other. Ultimately his fast field army utterly destroyed the Sassanid Persian Empire at the Battle of Nineveh, which had just conquered the Levant, Palestine, and Egypt. (As an aside, the destruction of Sassanid Persia and the ruin of war in Byzantium allowed one of the major turning points in history, one very relevant to this day: the Arab conquests.) Relational maneuver is something to think about for those underdogs out there.

There is a book I have not read called Litigation is War that purports to apply Clausewitz to litigation—but what if that’s not you? Sample a variety of primary sources.

Also, as far as games go, chess is infinitely superior to poker because it combines strategy, operations, tactics, and, despite what people think it is hugely psychological (even through a computer).

The kernel of wisdom in all of these pieces is that you must know yourself. Not your boss or your client or your firm—you have to know what your own strengths and weaknesses are first. As someone once put it, you go to war with the army you’ve got (not the one you wish you had).

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Under federal law, prospective employers must get written permission from applicants to run a credit check on them. But consumer advocates say most job applicants do not feel they are in a position to say no.

Most of the bills being proposed this year resemble laws in Hawaii and Washington that prevent employers from using credit reports when hiring for most positions. The laws contain exceptions in cases where such information could be relevant to the job — for example, if the person is applying to work in a bank or an accounts-payable office.

I understand employer’s interest in doing this, but at the end of the day it may lead to incentivize bankruptcy, which has anti-discrimination provisions built in. As the article points out, California had a similar bill that was recently vetoed. In an up economy, there’s probably a stronger correlation between credit and HR concerns. In this economy?

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This week the Equal Employment Opportunity Commission filed suit in Oklahoma federal court on behalf of Samantha Elauf, 17, whose hijab became an issue during a June 2008 interview for a position at Abercrombie Kids at the Woodland Hills Mall in Tulsa, Okla. In its lawsuit, the EEOC is citing violation of Title II of the Civil Rights Act. The complaint alleges the interviewer said that any “headgear” was prohibited by the “Look Policy,” and the company refused to make an exception for Elauf to wear her hijab for religious reasons.

A&F goes on to what you might call a “general denial” in the article. To people in HR and related fields this seems like such an obvious minefield—but one wonders: in the service economy especially, just how knowledgeable are the people in situations like this? In California in firms of a certain size, sexual harassment training is required of managerial employees. Much of that would be necessary if employees read and understood their employee handbook.

Does your employee handbook read like stereo instructions written in legalese?

I can get your manual compliant in plain English for a flat fee.

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Your personal attorney.

660 Mar Vista Dr.
Los Osos, CA 93402

Tel. (805) 270-5291
Fax (805) 980-4231
jonerik@jonerikstorm.com

I’m delighted to announce the launch of my solo practice.

Not just a new practice. A new kind of practice: I worry about my client’s business—not about running my own. My lean and efficient technology-based practice allows me to offer personal attention and revolutionary pricing.

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The 2009 legislative sessions in both Sacramento and Washington, D.C. have yielded significant developments for labor and employment law.

Both? I would say, on the contrary, the 2009 legislative session in Sacramento was probably the least eventful of the decade in developments “for” labor and employment law.

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So, I thought I’d point to this post from Robin Weideman on Dowell v. Pacesetter, Inc., a case which is more or less unremarkable, except that it is part of a continuing trend from the Court of Appeals: quit trying to make exceptions to B&P 16600.

We saw this earlier this year in TRG v. Galante and FLIR Systems v. Parrish. I noticed that I was hoping in my FLIR post to see the TRG ruling in July, but it came down in August.

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I find this interesting because what I have termed in the past “arbitroskepticism” seems to be a contrarian point of view, but it is increasingly gaining traction among lawyers who blog. The simple logic was always this: if the forum really was so advantageous for employers (or any one side, whoever) how long could it really be before the courts and/or legislature took notice. Added to that was, where’s the data?

And of course, the Courts took notice long ago.

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