Workplace Prof Blog

Worklife Balance, Employee Benefits, and Google’s Strange Choice

Cross-posted at Examiner.com

Google has placed number one on Fortune’s list of the "100 Best Companies to Work For" for two years in a row, now. In 2007, it was the company’s unusual perks, like free meals, a swimming spa, free doctors, and the prerogative for engineers to spend 20% of their time on their own projects that set the company apart. In 2008, the magazine focused on the generous stock options coupled with  great stock performance. And that’s why this summer’s controversy over Google’s daycare benefit came as something of a surprise.

Earlier in the summer, Google announced to its employees that it was going to have to raise the employee contribution to the cost of onsite daycare 75%. The tuition for an infant would rise from from $1,425 per month to almost $2,500 per month and the tuition for preschoolers would rise from just over $1,000 per month to about $1,700 per month. This move would price many of the workers out of the benefit. The childcare didn’t start much below market rates and would move to much above.

Not surprisingly, Google employees revolted, but the company didn’t budge much, eventually settling on a 68.34% hike, according to valleywag.com, which has posted internal e-mails discussing the changes. A vocal group of employees went to the media, and the last word from Wired.com is that Google has proposed building a new facility down the road. Employees suggest that a particular vice president wants the extremely high-quality daycare for her own child and is not willing to accept the less extravagant care preferred by the overwhelming majority of employees.

To suggest that onsite childcare is an employee benefit at Google after this would be illusory, something that the management seems to have recognized, since it no longer advertises it as a benefit. That loss is sad, but the story would have a wonderful ending if this event sparked a real discussion about childcare and work within Google and outside of it—what should childcare look like and how much should it cost? Who can afford it, and is it enough of a productivity booster that the employers should facilitate it and national policy should support it? These questions and more are things we’re just beginning to talk about, and I’d like to see the discussion begin in earnest.

MM

Federal Bias Claims Down, But What Does That Mean?

Federal job bias claims are down, reports the Daily Labor Report:

After reaching a peak of more than 23,000 employment discrimination lawsuits filed in federal court in 1997, that number has dropped to 14,353 in 2006, the Justice Department reports.

Analyzing federal district court data, the Bureau of Justice Statistics (BJS) says that following passage of the Americans with Disabilities Act, the Civil Rights Act of 1991, and other civil rights laws, such suits doubled in the 1990s and then held relatively steady through 2003. Since then, however, the number of civil rights suits filed in federal court has declined 20 percent, BJS reports.

Employment discrimination suits, which account for about half of all federal civil rights suits, numbered about 20,000 cases each year through 2003, but the number of job bias suits filed has dropped each year since then, BJS says.

More civil rights cases were tried before juries in 2006 than in 1990, a development the report attributes to the 1991 act, which made jury trials available for Title VII and Americans with Disabilities Act claims. Employment discrimination plaintiffs were most likely among civil rights plaintiffs to recover damages, BJS says. From 2000 to 2006, the estimated median award for prevailing job bias plaintiffs was $158,460, BJS reports.

I have to say that I am skeptical that the incidence of discrimination in the workplace has diminished.  My studies of whistleblower and First Amendment speech claims by federal employees suggest instead that employees have either given up thinking they can receive a fair shake from the agencies of this government or the conservative courts.  On the other hand, some are pursuing alternative routes like negotiated collective bargaining procedures.

PS

Strike Averted at Boeing

According to the New York Times, the union at Boeing workers in Washington, Oregon, and Kansas voted to reject the company's latest contract offer. The vote was overwhelmingly, 80 percent, in favor of rejecting it. And 87 percent voted to strike, even after Boeing had appealed directly to the workers to accept the offer and to reject the union leaders' recommendation to strike. The proposed contract would have covered 27,000 workers. The strike would have begun early this morning, but instead of calling the strike, union leaders agreed to return to the bargaining table. The Federal Mediation and Conciliation Service is attempting to mediate the talks, and it requested the return to the table.

According to the article,

The decision temporarily spares Boeing from further delays in the development of an important new aircraft, the 787, known as the Dreamliner. However, it likely heightens pressure on Boeing to meet the union’s demand for a better offer on wages, pensions and job security.
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The plane, Boeing’s first new jet in more than a decade, is a long-range plane that is intended to be 20 percent more fuel efficient than previous Boeing jets. Introduced with fanfare in the middle of this decade, the Dreamliner is more than a year late.

Its first test flight is scheduled late this year, and the first deliveries are set for the third quarter of 2009. Boeing has nearly 900 orders for the plane, whose main United States customer is Northwest Airlines.

Every additional day that the plane is pushed back will cost Boeing about $100 million, analysts said.

Talks between Boeing and the machinists were marked by unusual candor and confrontation about offers and demands at the bargaining table.

. . .

The terms of the three-year contract [Boeing proposed] include an 11 percent raise, up from an earlier offer of 9 percent, for the average machinist, who earns about $27 an hour, or $56,000 a year.

Boeing also proposed an increase in pension financing, as well as a proposal for workers to take on more of their health care expenses.

The union, meanwhile, has pushed for a 13 percent raise and richer pensions, and is balking at higher medical expenses. The current contract was extended while talks continue.

One union leader said the union would give Boeing 48 hours to make a new proposal and come to an agreement, and if it doesn't, the strike will begin early Saturday.

MM

DOL Refuses to Enforce Whistleblower Laws Against Corporate Subsidiaries

Congratulations to Richard Moberly.  His scholarship on the whistleblowing provisions of Sarbanes-Oxley serves as the basis of a page 3 article in today's Wall Street Journal about how the Department of Labor is routinely dismissing whistleblower complaints filed by employees at coroprate subsidiaries:

The Department of Labor, charged with enforcing the federal law protecting corporate whistleblowers at publicly traded companies, has been dismissing complaints on the technicality that workers at corporate subsidiaries aren't covered.

The government has ruled in favor of whistleblowers 17 times out of 1,273 complaints filed since 2002, according to department records. Another 841 cases have been dismissed. Many of the dismissals were made on the grounds that employees worked for a corporate subsidiary, says Richard Moberly, a University of Nebraska law professor. He studies issues involving workers who face retaliation from employers for reporting wrongdoing, and based his findings on department data. The rest of the cases are either pending, withdrawn or were settled.

Sen. Patrick Leahy, a Vermont Democrat who helped craft the whistleblower provision -- part of the Sarbanes-Oxley corporate governance act -- says the law was meant to cover workers in corporate subsidiaries. "Otherwise, a company that wants to do something shady, could just do it in their subsidiary," he said.

For the entire WSJ article, see Jennifer Levitz, Whistleblowers Are Left Dangling (subscription required).

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Costs and Benefits of the FMLA

On the heels of Bird & Knopf's surprising finding that the costs of disability laws are much higher than expected comes a new study by Jeffrey Eisenach (Criterion Economics; adjunct at George Mason) finding the same true of the FMLA.  His article, just posted on SSRN, is Assessing the Costs of the Family and Medical Leave Act.  Here's the abstract:

The [FMLA] allows eligible workers employed by covered establishments to take up to 12 weeks of unpaid leave per year. Employees may become eligible for FMLA leave when either the employee or a family member suffers from a serious health condition. Additional qualifying events include family-related responsibilities, such as the birth or adoption of a child. Various aspects of FMLA, as enforced by the Department of Labor, have become controversial, including specifically the provisions permitting employees to take "intermittent" leave for recurring health conditions. This paper reviews existing evidence on the benefits and costs of FMLA, concluding that the costs are likely much greater than the Department of Labor has acknowledged.

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EEOC Issues ADA Guide

The U.S. Equal Employment Opportunity Commission today issued a comprehensive question-and-answer guide addressing how the Americans with Disabilities Act applies to a wide variety of performance and conduct issues.

The guide:

reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities.  Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.

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More Sovereign Immunity Fun

Most readers of this blog are all-too-aware of the havoc that the Supreme Court's state sovereign immunity jurisprudence has wreaked upon labor and employment law.  Former Chief Justice Rehnquist's absence seems to have quieted the Court's action in this area, but the wake of its previous rulings are still rippling in the lower courts.  The latest is a decision by the Third Circuit, Lombardo v. Commonwealth (Aug. 25, 2008).  The plaintiff in Lombardo sued Pennsylvania in state court under the ADEA and state human rights act.  The state removed the case to federal court, which normally means that they waive any sovereign immunity claims.

The Third Circuit acknowledged the waiver rule, but basically nullified it by distinguishing the waiver of a lawsuit, which removal can achieve, from the waiver of sovereign immunity, which requires a "clear and unmistakable" waiver.  In essence, what this holding means is that a state that removes a case can't raise the issue of sovereign immunity itself, but a court can sua sponte.  The court recognized that other circuits have gone the other way, although its position isn't totally unreasonable given the Supreme Court's holdings in the area (but those holdings could even more easily fit the opposite conclusion).  What this shows is how nutty the entire sovereign immunity field has become.  It's about the Eleventh Amendment, except when it's not.  It's about subject matter jurisdiction, except that it can be waived by a party.  Maybe. 

For a set of Justices that talk a lot about limited judicial authority vis a vis the legislature, it would be nice for them to take a step back to see just how much they've forced courts to override the clear intent of Congress in these cases. 

-JH

Arbitrating Retirees' Health Benefits

Today's Daily Labor Report explains the significance of yesterday's Seventh Circuit decision of Exelon Generation Co. v. Int'l Bhd. of Elec. Workers Local 15, 7th Cir., No. 07-4065, 9/2/08).  The court held that the union is not required to obtain the consent of some 6000 retirees before it can arbitrate with Exelon Generation Co. over the company’s unilateral modification of the retirees' entitlement to health benefits.

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Hybrid Union Representation Procedure?

As further proof that California is unique in its development of labor and employment law, a bill has just landed on Governor Schwarzenegger's desk that would provide farmworkers with a new option for seeking union representation.  It's a compromise that arose from the ashes of an attempt to implement card-check representation and goes some of the way in addressing concerns of union intimidation with a card-check.  As described by BNA's Daily Labor Report (subscription required):

Legislation (S.B. 2386) that would allow farmworkers to seek union representation in secret mail-in ballots that ask either for immediate representation or for a traditional ballot box election is on the way to California Gov. Arnold Schwarzenegger's (R) desk after receiving final approval from the Assembly Aug. 29. . . .

The bill keeps intact the ballot box election process in current law, but creates a second option called a mediated election. Under this option, a majority of an employer's workers could file a petition with the Agricultural Labor Relations Board asking for a mediated election. Employees then would have five days to deliver or mail ballots to ALRB, and ALRB would have five more days to gather ballots to account for mailing time.

If more than half of eligible employees vote on those ballots for union representation, ALRB would be asked to certify the vote immediately as an election. If more than half of eligible employees vote for a secret ballot election, ALRB would conduct such an election within seven days.

It's an interesting idea and if more states were doing things like this, I might not be so gung-ho about kicking them out of the business of regulating labor and employment law.  There are a few aspects of this bill, however, that make me doubt that it's going to make a significant difference.  First, the requirement that a majority of employees to sign a petition for the new procedure means that many of the problems with employer intimidation and unions' lack of access that we currently see under the NLRA will be a problem here.  Second, the bill requires a majority of eligible voters to actually vote before even opening the mailed-in ballots.  I don't know for sure, but I imagine that getting over half of all employees to mail something in may be hard in certain cases.  Despite these concerns, I hope the governor signs the bill, as it can only help farmworkers and I'd love to see how this ends up playing out.

Hat Tip:  Dennis Walsh

-JH

Can a Worker Get a Break? (Take Two)

Cross Posted: Marquette University Law School Faculty Blog

A follow up on yesterday's post discussing stagnating wages and later retirement ages (this one from the Washington Post):

Six months ago, Ivan Sanchez was optimistic about his future. He had recently earned a bachelor's degree in business management and was writing a book about growing up among gangs and guns in the Bronx.

Then he was threatened by something else: a credit card bill, student and car loan debt, higher gas bills and rising rent. With two high school age children in need of clothing and school supplies and a toddler in need of much more, it didn't take very long for Sanchez's optimism to fade. That's when he decided to do what any financial planner would advise against: He dipped into his 401(k) retirement plan.

"There's no other way I could do it," said Sanchez, a 35-year-old Virginia Beach resident.

Hard economic times are driving some people to take actions that could jeopardize their futures. With home equity lines of credit and other types of loans harder to get, employees are increasingly raiding their retirement plans to take care of immediate needs such as paying down debt and medical bills, staving off foreclosure, or simply covering higher food and fuel prices.

It sounds like a necessity in this case and other cases where financial need overwhelms other consideration.  But consider this chart I posted a while ago about the impact of higher mutual fund fees.  The same impact is felt when 401k assets are withdrawn before maturity. Moreover, participants must pay a 10% excise tax, in addition to pay income tax on the distribution if before age 59.5.

This is expensive money! A person is probably better off taking a loan from the bank at a lower interest rate if possible.

Hat Tip:  Dennis Walsh

PS

Can a Worker Get a Break?

Cross posted on: Marquette University Law School Faculty Blog

Apparently, they should not expect one in 2009 (or maybe not in this lifetime).

MSNBC (via AP) reports:

U.S. workers can expect skimpy raises in their base salaries next year, but top performers may still fatten their paychecks with merit compensation.

A study released Tuesday by Hewitt Associates, a human resources consulting firm, found base pay will rise by 3.8 percent in 2009, marking the seventh consecutive year of flat growth.

One-time performance-based pay, however, is expected to grow by 10.6 percent. That’s down slightly from 10.8 percent this year and 11.8 percent in 2007.

Great.  On our way to more pay inequality in this country and to a place where workers will have to wait longer before being able to afford retirement (Yahoo! News via AP):

While the average retirement age remains 63, that standard may soon be going the way of the gold watch — a trend expected to accelerate as baby boomers close in on retirement without sufficient savings.

For 64-year-old John Lee, "retirement" bears a strong resemblance to his full-time working career — full of 40- and 50-hour weeks as an IT technical support specialist. He's not strapped but likes the extra cash and the feeling of being needed.

But for Melissa Fodor, a retired travel agent who works part-time as a caregiver for the elderly, the extra work "keeps my head above water" and there's no end in sight to that financial need at age 68.

Although the work is satisfying, she confides that "financially I'm kind of scared most of the time. Because what should happen if my health and my body fail?"

Lower wages on a yearly basis are not the only reason for individuals working longer.  The ascendence of consumer driven 401(k) pension plans means that when the market suffers a downturn (like now), workers have less to retire on.

Consider from your daily experiences how many more older people you see these days working at Lowe's, McDonalds, etc.

PS

Secunda on Taking Back Labor Day

Our own Paul Secunda has written this thoughtful piece for Workplace Fairness' Take Back Labor Day project.

From the essay,

The Ledbetter decision creates an absurd result. Individual pay decisions by themselves are usually small, incremental changes, not as obviously motivated by discriminatory intent the way that more serious discrete acts such as terminations or failures to promote do. It is not until many discriminatory wage decisions have occurred that the discriminatory injury becomes clear to the employee.  Often, it takes many years for this pattern to develop before the employee realizes that she might have a claim.

The Ledbetter decision is inconsistent with the purposes of Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large.  It leads to an absurd situation where employees must bring pay claims prematurely when they cannot be sure there has been unlawful pay discrimination. If the employee waits to a later time when there exists more substantial evidence of pay discrimination the employee will be barred from bringing the claim at all by the statute of limitations (as in Ledbetter).  This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.

But legislative nullification depends on both what the next Congress and President plan to do to address this glaring gap in ensuring pay equity in the workplace. Even if Congress continues to support the Lilly Ledbetter Pay Equity Act and passes it in both houses next year, the identity of the next President may determine whether that legislation is signed into law.

Paul notes that McCain has expressed opposition to the bill (although he was absent for the vote), while Obama supports it (and voted). Read the full essay for more.

MM

Jindal let anti-discrimination order expire

About a week ago, Louisiana Governor Bobby Jindal allowed an executive order that prohibited discrimination and harassment on the basis of sexual orientation to expire. Louisiana's CBS affiliate has this story on it. According to theadvertiser.com, the executive order prohibited discrimination and harassment by government bodies or by private employers that contracted work with the state. The executive order had also prohibited discrimination and harassment on the basis of race, religion, gender, national origin, political affiliation and disabilities.

Jindal stated that his reason for allowing the order to expire was that federal and state law was sufficient to protect against discrimination, and according to the CBS story,"'I don't think it's necessary to create additional special categories or special rights,' says Governor Jindal. 'And I do have concerns it may interfere with the ability of faith-based groups to partner with the state to accomplish very important goals.'"

This loss of job protection in at least some jobs is a serious blow to the LGBT community in Louisiana.

MM

Third Circuit Holds Spanish-Speaking Employee Bound by Arbitration Agreement Written in English

The Third Circuit has just held that an employee speaking only Spanish is bound by an arbitration clause in an employment agreement written in English.  The trial court had held that the arbitration agreement was unenforceable because the employee had signed the agreement without knowing that it contained an arbitration clause.  The Third Circuit reversed, holding that the employee was bound regardless of whether he knew of the existence of the arbitration clause.

The case is Morales v. Sun Contractors, Inc., No. 07-3806 (Aug. 28, 2008).  Contrast this with Prevot v. Phillips Petrol. Co., 133 F. Supp.2d 937, 939-41 (S.D. Tex. 2001) (refusing to enforce arbitration agreement written in English against Spanish-speaking employees).

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Disability Laws and Firm Performance

Robert Bird (U. Conn. - Marketing) and John Knopf (U. Conn. - Finance) have just posted on SSRN their article Do Disability Laws Impair Firm Performance?  Bird and Knopf find they do.  Here's the abstract:

Much has been written about the impact of disability laws on employers and employees. Yet there is little empirical support available on whether disability laws impact employers in a negative or positive way. We fill this gap in the literature by studying the impact of state disability laws adopted by legislatures and courts between 1976 and 1988. By examining the data of approximately 18,000 commercial banks and after controlling for local state economic conditions, we examine whether disability laws impact firm employment, salaries, profitability, and capital investments. We find a small decline in employee salaries and a large decline in fixed asset investment associated with the passage of state disability laws. Our results are significant and surprising, and have policy implications for both state and federal disability protections.

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Trouble for SEIU Officials

Abuses in unions are not a new problem and have gained more attention recently during the battles over EFCA (even Johnny Sack has gotten involved).  But the SEIU's largest local in California is facing some serious problems with improprieties.  According to the LA Times:

A growing financial scandal in the 2-million-member Service Employees International Union has prompted a federal criminal investigation into the labor organization's largest California local, sources familiar with the probe say. U.S. Labor Department authorities are examining payments of hundreds of thousands of dollars by the union and a related charity to firms owned by relatives of the Los Angeles local's president and expenditures of similar sums on a golf tournament, restaurants, a cigar lounge and entertainment companies, according to people with knowledge of the investigation.

The investigators are also looking into allegations that some union staff members faced retaliation last week after they refused to sign a petition supporting its president, Tyrone Freeman, the sources said. . . .

Two agencies of the Labor Department are conducting the inquiry -- the Office of Labor-Management Standards and the Inspector General's Office. They are responsible for investigating allegations of criminal embezzlement and racketeering in unions and work with U.S. attorney's offices in pursuing prosecutions.

A spokeswoman for SEIU President Andy Stern said late Wednesday that the Labor Department had notified the union that an investigation had been launched. "We are deeply concerned about these allegations," said spokeswoman Michelle Ringuette. "We are cooperating fully. We will not tolerate in any leader actions that threaten the best interests of our members." . . .

The union's national office has placed Freeman's local in trusteeship, removing its elected officials, including 55 board members. The local is the second largest in the Service Employees International Union, the fastest-growing labor organization in the country. . . .

Unfortunately, any time people have control over a lot of money, abuse is a potential.  However, I've always found these instances to be particularly frustrating, because they not only steal money from employees, but also give unions in general a black-eye.  That's why it's so important that the internationals go after local leaders like these, as it sounds like the SEIU is doing. And, picking up on our previous post, this points out at least one type of issue that the DOL will investigate.  This is obviously an appropriate thing to look into, but it would be nice if the DOL could be motivated to do more than go after unions.

Hat Tip:  Dennis Walsh

-JH

The Difficulties of Labor Monitoring

The issue of monitoring employers--especially subcontractors--for labor standards violations has long been a vexing one (just ask Kathie Lee Gifford).  So, the following story from the AP should come as no surprise:

Like other garment factories in New York, Jin Shun Inc. was a small enterprise on the city's margins, staffed by Chinese-speaking immigrants and tucked away in an industrial corner that few outsiders see. There were still plenty of eyes on the factory: government regulators and monitors hired by big-name retailers to look for labor violations. Yet state labor officials who raided the shop in July said all those people who had been watching missed something — that its owners had shortchanged workers of $3 million in wages since 2005.

Monitoring programs created in the 1990s to counteract the public's outrage over sweatshops led to a new breed of scofflaws — schemers who learned to deceive their monitors in a more sophisticated fashion. "There is an increase in contractors devising schemes to hide the violations," said New York Labor Commissioner M. Patricia Smith. "It shows the need for really aggressive enforcement." . . .

Investigators said the New York factory, Jin Shun Inc., had schemed to deceive its many monitors, which included inspectors hired by several big-name clothing retailers that relied on the plant for production. Among the allegations by authorities: Employees put in up to 70 hours a week while punching multiple timecards to hide their overtime. The company repeatedly changed names to avoid investigation. Workers, mostly Chinese-speaking immigrants, were even given cheat sheets, telling them how to answer questions from labor inspectors. The cheat sheets, in Chinese, instructed workers to say they couldn't remember the details of their schedules, but always made at least $7.75 per hour. . . .

Labor experts said the case illustrates the limitations of public and private programs put in place to monitor garment factories for labor abuses. San Diego State University professor Jill Louise Esbenshade, who studied the garment industry in Southern California, said infractions are still rampant. One California survey found that more than half of the shops in monitoring programs were out of compliance with labor law. Part of the problem, she said, was that employees had little incentive to reveal violations.

As Commissioner Smith emphasized, this issue shows the need for strong government inspections and enforcement.  No system is ever perfect, but what New York has been doing is clearly more effective than the federal DOL.

Hat Tip:  Dennis Walsh

-JH

Advice for Young Women Workers

I missed this book when it was first released, but looked it up after reading Hannah Seligman's editorial, "Girl Power in School but not in the Office," in the New York Times yesterday. After reading the editorial, I'm going to have to check it out, though.

From the editorial,

I WAS born in 1982 — about 20 years after the women’s rights movement began. Growing up in what many have called a post-feminist culture, I did not really experience institutional gender bias. “Girl power” was celebrated, and I felt that all doors were open to me.

When I was in college, the female students excelled academically, sometimes running laps around their male counterparts. Women easily ascended to school leadership positions and prestigious internships. In my graduating class (more than half of which was female) there was a feeling of camaraderie, a sense that we were helping each other succeed.

Then I left the egalitarianism of the classroom for the cubicle, and everything changed. The realization that the knowledge and skills acquired in school don’t always translate at the office is something that all college graduates, men and women, must face. But for women, I have found, the adjustment tends to be much harder. It was certainly hard for me — I lasted only nine months in my first job out of college.

Seligman interviewed women like herself and also highly successful women farther along in their careers. She notes obstacles in external forces, like some women who sabotage those who come after, and some men who don't take young women seriously. She also notes internal obstacles like too much sensitivity, perfectionism, and an unfamiliarity to network or ask for things, like a certain salary. She notes

The American Association of University Women found that men who are a year out of college make 20 percent more in weekly pay than their female co-workers do. Why? Because my friend and scores of other young men understand the central tenet of a bigger paycheck: ask and you shall receive.

The pay disparity speaks to a larger issue that women, coming directly out of the colleges that nurtured and rewarded them and gave them every advantage, may have trouble grasping. For me, it was crystallized in a comment made to me by Myra Hart, a retired senior faculty member at Harvard Business School who studies women as entrepreneurs: “By and large women believe that the workplace is a meritocracy, and it isn’t.” 

I'm going to have to get this book. I think there's a lot that I could learn, and I'm a lot older than Seligman.

MM

Recently Published Scholarship

Articles

• Susan P. Stuart (photo above), Citizen Teacher: Damned If You Do, Damned If You Don’t, 76 U. Cin. 1281 (2008).

Student Scholarship

• Rachel M. Bowe, The Scope of Arbitration Clauses in Collective Bargaining Agreements & the Superficial Divide: Clarifying the Circuit Confusion, 31 Hamline L. Rev. 233 (2008).
• Keri Phillips, Resurrecting Gilbert: Facial Parity as Unequal Treatment in the Eighth Circuit’s In re Union Pacific Railroad Employment Practices Litigation, 31 Hamline L. Rev. 309 (2008).
• Adam B. Marks, Personnel Foul on the National Football League Players Association: How Union Executive Director Gene Upshaw Failed the Union’s Members By Not Fighting the Enactment of the Personal Conduct Policy, 40 Conn. L. Rev. 1581 (2008).
• Richard J. Padykula, Labor’s First Amendment Rights May Rest on the Haunches of a Rat: 29 U.S.C. s 158(b)(4)(ii)(B) and the Secondary Boycott Rule, 30 W. New England L. Rev. 867 (2008).

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Happy Labor Day!!!

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Call for Book Reviews

From Bridget Crawford at Feminist Law Profs comes this call for book reviews:

Call for Book Review: Women and the Law

Proposals Due September 25, 2008

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners and professionals for contributions to a special book review issue to be published in Winter 2008. We seek proposals for reviews of any book published in 2008, 2007 or 2006 that contributes to the understanding of women's experiences with the law.

Pace Law School has a longstanding commitment to both the study of women and the law and the development of women as lawyers and leaders. The Pace Women's Justice Center was founded in 1991 as the first academic legal center in the country devoted to training attorneys and others in the community about domestic violence issues. Pace is a vibrant and intellectual community that contains several nationally-recognized scholars of women's, children's and LGBT rights.

A law review folume devoted to books concerning women and the law promotes an ongoing discourse on women and the law, justice and feminist jurisprudence.

Please submit book review proposals of no more than 500 words by attachment to plr@law.pace.edu by September 25, 2008. Proposals should include (a) the intended reviewer's name, title, institutional affiliation and contact information; (b) the title and publication date of the book proposed for review; (c) a description of the importance of the book to the general topic; and (d) any other information relevant to the book or proposed review (e.g., the proposed reviewer's expertise or any relationship with the author). Authors are welcome, but not required to submit a CV as well. We expect to make publication offers by October 1, 2008.

Complete manuscripts from authors of accepted proposals will be due November 1, 2008. Completed book reviews should not exceed 8,500 words.

Book reviews are a great way to get a little extra mileage out of research you're doing for other scholarship. If you're reading something and incorporating it into your work already, just develop it a tiny bit more for its own piece.

MM

SSRN Top-10 List of Recent Employment & Labor Downloads

Because the rankings in the individual labor/employment journals no longer are available, I've compiled this week the top-10 list of recent downloads in the overall labor/employment category.  Here it is:
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1. Richard L. Kaplan (photo above), A Guide to Starting Social Security Benefits (626).
2. Jonathan Barry Forman & Bing Yung-Ping Chen, Optimal Retirement Age (207).
3. Thomas J. Miles & Cass R. Sunstein, Depoliticizing Administrative Law (155).
4. Arlen Specter & Eric S. Nguyen, Representation Without Intimidation: Securing Workers’ Right to Choose Under the National Labor Relations Act (102).
5. Michelle A. Travis, Lashing Back at ADA Backlash: How the Americans with Disabilities Act Benefits Americans without Disabilities (90).
6. Jennifer Gordon & R.A. Lenhardt, Rethinking Work and Citizenship (88).
7. Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? (84).
8. Marcos Pompeu Pareto, The Health Care Crisis in the United States: The Issues and Proposed Solutions by the 2008 Presidential Candidates (80).
9. Meredith R. Miller, Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process (78).
10. Jeffrey M. Hirsch, Employee Collective Action in a Global Economy (75).

Workplace Fairness' Take Back Labor Day Blog Project

Workplace Fairness is setting out to take back Labor Day for Labor.

On Labor Day, September 1, Workplace Fairness will launch the Take Back Labor Day blog project on the new and improved Today's Workplace blog.

. . . [S]upport Take Back Labor Day by visiting the blog and sharing your opinions and insights with our bloggers and our readers through the comment function. Please help us start a real conversation about workplace fairness in this country.

. . .

Take Back Labor Day is part of a larger effort, where upwards of 40 blogs have agreed to blog about Labor Day and labor issues on Labor Day 2008, to rally American workers and remind the American public about what Labor Day is really about - that's it's much much more than just a three-day weekend!

 Many influential bloggers, academics, and important thinkers will be participating, and I have to say welcome in particular to one of my good friends from law school, Elizabeth Glidden, a Minneapolis City Council member and employment lawyer. A great project, and we look forward to lots of thoughtful posts.

MM

Harthill Promoted to Associate Professor

Congratulations to Susan Harthill (Florida Coastal), who has just received final word that she has been promoted to Associate Professor.

Prior to joining FCSL, Susan was Special Counsel with the law firm of Steptoe & Johnson LLP in Washington D.C., practicing in the area of ERISA and employment law litigation. She has also served as an attorney with the Legal Aid Society of the District of Columbia as a loaned attorney from Steptoe & Johnson, representing low-income clients in the areas of family law, welfare and public benefits, and landlord-tenant disputes.

Susan has just posted on SSRN her article (forthcoming ___ Minn. J. Int'l L.) Bullying in the Workplace: Lessons from the United Kingdom.  Here's the abstract:

This comparative article explores how the United Kingdom has tackled the problem of workplace bullying with the goal of drawing lessons for the emerging U.S. workplace bullying movement. In stark contrast to the U.S., the U.K. has been actively identifying and tackling workplace bullying since 1997 at the grassroots, political, organizational, and legislative levels. This article describes the development of the notion of a "dignitarian workplace" in the U.K. even in the absence of a dignity tradition, and argues that the U.K. provides useful insight for the U.S. at this formative stage of U.S. workplace bullying law. The most useful lesson is that the U.S.'s lack of a dignity tradition need not be fatal to the workplace bullying movement. In the U.K., employees have successfully utilized anti-stalking legislation to obtain legal relief against their employers for workplace bullying. This potential for litigation has, in turn, spurred organizational change. In addition, recognition of the societal as well as individual costs, not surprisingly, appears to have been another impetus behind trade union and government-funded initiatives to tackle the problem of workplace bullying in the U.K.

Learning from that experience, this article suggests that governmental and management recognition of the widespread nature of the problem is the first step in tackling workplace bullying. This article proposes that employer self-regulation and new workplace bullying legislation would have a better chance of success in the U.S. if preceded by efforts to educate legislators and employers on the individual and societal costs of workplace bullying. This article further proposes that legislative efforts can be bolstered by advocating for bills authorizing studies of the effects of workplace bullying. This approach therefore advocates more effective engagement of trade unions, management groups, and legislators to survey and define the problem of workplace bullying as an initial step in tackling workplace bullying in the U.S.

Susan also has posted an abstract of her work-in-progress: A Square Peg in a Round Hole? Whether Make Whole Relief Is Available Under ERISA Section 502(A)(3).

rb

11th Cir. Appears to Mix Up Its Standards of Review in Title VII Case

Thanks to Miranda McGowan (San Diego) for bringing to my attention the case of Butler v. Alabama DOT, No. 07-1335 (11th Cir. July 30, 2008). 

It appears to be a fairly typical employment case, except that the court entirely messes up the standard of review for reviewing a jury verdict.  Indeed, this case seems to be a pretty plain example of a court reaching to factfind in an employment case and using the wrong standard of review to do so. 

Plaintiff in this case won a jury verdict on racial disparate treatment claim of $150,000. She alleged a pattern of racially motivated conduct. 

Miranda points out the standard that the court uses for reviewing the denial of the defendant's motion for judgment as a matter of law:

We review de novo the district court's denial of a motion for judgment as a matter of law. See generally Nurse "BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1308 (11th Cir. 2007).  (footnote:  Because we are considering the denial of a motion for judgment as a matter of law, we have previously set out the facts in the light most favorable to the non-movant, Butler. See Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1149 (11th Cir. 2005); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192–93 (11th Cir. 2004).

Miranda asks: Where did the old standard of "no reasonable juror . . . . " go?  Where did it go, indeed.

PS

Gould on Labor Law Reform

Bill Gould (Stanford emeritus and former Chair of NLRB) has just had published in Slate a proposal for labor law reform.  As is no surprise, Gould's proposals are ambitious and never to be confused with orthodox thinking in the area.  He notes the problems with "bad appointments" to the Board and long election delays, then proposes bipartisan (at least possible bipartisan) measures that might improve the NLRA--even under a stalemated political line-up, such as a President Obama and more than 40 Republican senators:

Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so—and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously—for instance, within one or two weeks of the filing of a union's petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy. . . . [U]ntil most of business moves toward [voluntarily expedited elections], Congress must make them address complaints quickly by imposing time limits for the NLRB is to issue a decision about whether to hold a union election or reinstate unlawfully dismissed workers. The agency's action on election disputes should be final and unappealable so that workers and management can get on with collective bargaining promptly. That there are no such mandates currently constitutes the heart of what ails American labor law.

Other reforms are also needed. For instance, the law should provide that unions have the right to communicate and address employees on company property. Today, only employers may do so. The NLRB must also be given the authority to punish companies through fines that double or triple the amount of back pay owed to workers who are illegally dismissed or demoted. The law could also spur collective bargaining with a provision for arbitration if labor and management are unable to agree on their own.

Then there is the composition of the NLRB. A Democratic president, if we next have one, should make appointments that are freer from partisan pressure from either side than they have been during the past decades. At the moment, board members are frequently reluctant to act promptly, and thus avert the crisis for union recognition caused by delay, because of the fear that their vote will be unpopular and diminish their chances of being reappointed. This has been true in both Democratic and Republican administrations. The next president should address this weakness by recruiting nominees from all parts of the country, not just the Washington-insider circle that has come to dominate federal administrative agencies. Also, appointees should be limited to one eight-year term. In this way the very best people will come to Washington, willing, like Cincinnatus, to return to their homes when their appointment ends.

Gould's thoughts on elections, and his implicit criticism of EFCA, fits with my own view of that bill as a second-best solution to a real problem.  I also like the notion that there are many reforms that--particularly as a package--may be acceptable to all parties and go far in improving the NLRA's ability to satisfy its goals.  But I'm not holding my breath that it'll actually happen.

-JH

The Definition of Dead on Arrival (DOA)

Courtesy