Wednesday, December 4, 2013
Although not a traditonal piece of labor and employment law scholarship, David Yamada (Suffolk) has written up a blog post on issues relating to intellectual activism and the role of academics as public intellectuals. It includes, among other things, a link to a short article David recently posted to SSRN, "If It Matters, Write About It: Using Legal Scholarship to Promote Social Change," which discusses how legal scholars can harness their scholarship for change initiatives and discusses some of the advocacy and public education work David has been doing on workplace bullying, unpaid internships, and other topics.
I thought this subject matter would be of interest to many readers of this blog, who through their own work seek to effect social change through intellectual activitism in the labor and employment law context.
The Fifth Circuit just handed down its opinion in D.R. Horton v. NLRB, and, while the Board may have won the battle, it seems to have lost the war – absent en banc review or cert.
As anybody who has suffered through presentations or conversations with Tim Glynn or me knows, Horton had enormous potential for changing the landscape of arbitration law, reflected in our recent article in Alabama. In its decision, the NLRB ruled that the company’s “Mutual Arbitration Agreement” violated Section 7 and 8(a) for two reasons: first, by being drafted broadly enough to convey to a reasonable employee that she was giving up her right to file unfair labor practice charges with the Board; and, second, by cutting off the right of employees to pursue both class (or joint) actions and class (or joint) arbitration, it infringed employee rights to act concertedly for mutual aid and protection.
The second ground was obviously more sweeping than the first, since it had the potential – at least in the employment arena – to undermine the Supreme Court’s validation in Concepcion of agreements barring class arbitration.
Before the Fifth Circuit, the Board won on the first ground and lost on the second. Upholding the Board on the first ground is not insignificant -– management-side attorneys will be scurrying around for months reviewing and revising arbitration agreements to make more explicit that workers retain the right to resort to the NLRB. But far more important is the court’s rejection of the concerted action argument.
To get to either of these issues, the Fifth Circuit had to wade through a variety of arguments about the composition of the Board that rendered Horton, including validity of recess appointments of Board members (the issue before the Supreme Court in Noel Canning), whether Member Becker’s appointment (even if valid) expired before Horton was handed down, and whether there was improper delegation of authority to the three member panel that decided Horton. I’ll spare the reader the technical discussion, but the Fifth Circuit either ruled in the Board’s favor or dodged the questions thus allowing it to reach the merits.
As to whether the arbitration agreement violated 8(1)(1) and (4) for “including language that would lead employees to a reasonable belief that they were prohibited from filing unfair labor charges,” the court upheld the Board. Even though the agreement did not explicitly address charges to the agency, it was written in language that could be reasonably construed to do so. Again, the court’s upholding the Board’s conclusion on this ground is significant, although clearly of less import than if the court had also affirmed on the other ground.
As for the second ground, the opinion acknowledged “some support” for the “Board’s analysis that collective or class claims, whether in lawsuits or in arbitration” are protected concerted activity under the NLRA. But that conclusion did not take into account the Federal Arbitration Act, and whatever deference the Board may be owed in construing the NLRA in isolation was not appropriate where the FAA was concerned. Essentially treating the FAA as a “super-statute,” the court stressed the “barrier any statute faces before it displaces the FAA.”
For reasons not clear, the opinion then detours into an excursion as to whether the class actions are a substantive or procedural right, not surprisingly finding them procedural. Why that would matter when Section 7 appears to largely protect rights that could be described as “procedural” (organizing) is not so clear.
At any rate, the court proceeded to consider two “exceptions” to the FAA command that arbitration agreements be enforced according to their terms – although I, at least, don't understand why they are two separate exceptions rather than simply a way of meshing two statutes which are at least in some tension with each other.
The first exception, according to the court, was the FAA’s “savings clause,” which allows courts to refuse to enforce an arbitration agreement “upon such grounds as exist in law and equity for the revocation of any contract.” Although the NLRA’s prohibition (much less the Norris-LaGuardia Act’s explicit declaration that agreements to such effect are not enforceable) would seem to satisfy that clause, the Fifth Circuit’s “detailed analysis” of Concepcion led it to the opposite conclusion -- essentially because, while facially neutral between arbitration and litigation, the result would be to disfavor arbitration. The presumption seemed to be that employers would forego even individual arbitration if faced with class actions/class arbitration.
This is all somewhat head-scratching since it essentially bootstraps the conclusion it reaches. The FAA’s preference for arbitration is undeniable, but, by the FAA’s own terms, limited. The limit would seem to have been reached by the boundary staked out by Norris LaGuardia and the NLRA. The preference, nevertheless, somehow o’er leaps the textual boundary that the statute itself established.
At any rate, the court moved on to the second exception – application of the FAA may be precluded by another statutory command (the NLRA). The Fifth Circuit begins, again, by treating FAA as a super-statute, and finding no explicit language trumping the FAA. It doesn’t explain why the Norris LaGuardia language “shall not be enforceable” doesn’t suffice as explicit language to the contrary, but presumably that’s because it only addresses “any undertaking or promise” (emphasis added) without mentioning arbitration. (The court dismisses the Norris LaGuardia argument in a footnote without explaining why).
In any event, lacking explicit trumping language, a contrary “general thrust” of the NLRA is not sufficient, although an “inherent conflict” would be. Such a conflict, however, is lacking because arbitration is generally favored in the union context (of course, the cases cited involve arbitration under collective bargaining agreements where the union can be expected to keep employers in check) and because of “conceptual problems” whose significance is not so clear.
Judge Graves concurred with the affirmance of the Board’s decision but would have found that the arbitration agreement “interferes with the exercise of employees’ substantive rights” under Section 7.
One question that remains puzzling in the wake of the Horton opinion is the effect,, if any, of arbitration agreements that constitute unfair labor practices (as in Horton itself) on the validity of the arbitration agreement. An employer in the situation of Horton could, of course, modify its arbitration agreements to make sufficiently clear to employees executing them that they retain the right to file charges with the Board. But suppose employers don't, or suppose that the question of arbitration arises under an extant agreement that violates the statute as intepreted by both the Board and the Fifth Circuit? Should a court being asked to stay a suit pending arbitration do so, thus "enforcing" an illegal agreement? Or should it find the whole agreement unenforceable because tainted by illegality? Or what?
Monday, December 2, 2013
Ed Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise to the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration's Affordable Care Act's (ACA's) contraceptive coverage mandate.
Here's a taste:
This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.
An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.
Personally, I do not see a RFRA or free exercise problem with ACA's mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals, for-profit corporations do not and should have have free exercise rights, and the exemption from the law for for-profit religious employers would permit them to inappropriately interfere with the personal health care decisions of their employees. I also do not know what "religious minorities" Ed is referring to, since corporations like Hobby Lobby seek to impose their very much dominant Christian religious practices on their employees (Christian and non-Christian alike).
All that being said, Ed should be given credit for thinking outside of the box and coming up with a compromise which might satisfy both sides of the debate. The likelihood of this suggestion being taken up in the short-term now that the Supreme Court has granted cert. in the Hobby Lobby case is unlikely. However, if Hobby Lobby and similar religiously-oriented corporations should prevail (a real possibility with the current make up of the court), then this proposal might be a way in which this type of much needed health care coverage could be provided to employees of for-profit religious employers.
Moneyball was, of course, about a kind of personnel selection process, albeit in the exotic universe of picking baseball players, so it's not surprising that "big data" has continued to develop in the employment setting. If you haven't been following this stuff, a good place to start is a recent article in the Atlantic, They're Watching You at Work.
As the scare title suggests, some of the developments continue the seemingly inexorable erosion of employee privacy. For example, electronic "badges" that collect data on employee interactions at a pretty deep level -- length, tone of voice, how much people interrupt, demonstration of empathy, etc. Team performance, apparently, can be predicted to a remarkable degree merely by the number of exchanges. And more refined data can identify "charismatic connectors" (maybe we used to call them "supervisors"?).
But privacy issues aside, Big Data has the potential to shift the criteria by which employers hire, and maybe not in obvious ways. One company thinks "one solid predictor of strong coding is an affinity for a particular Japanese manga site." And another uses video games (Wasabi Waiter, for one) "to suss out human potential." You might want to rethink telling Junior to put the iPad down and pick up a book.
Of course, in one way we've been here before, as the article stresses. "Scientific" human resources is not new, but this time, unlike prior fads, the approaches may in fact be scientific. In other words, the terabytes of data now available may allow a present day employer to have far more confidence that a successful Wasabi Waiter player will perform well on the job than an employer in the past could have expected from someone who passed the Wonderlic test with flying scores.
If so, we may see massive changes in the way employees are selected and rewarded, and not so very far in the future. Not all of which may be bad: the article stresses that such techniques may ameliorate the discriminatory effects of cognitive bias and the inequality concerns with current use of university/GPA as rough screens for probable performance.
But the legal implications remain to be worked out. We may be looking at yet another round of testing litigation, although this time the "test" being challenged might be Wasabi Waiter. (Oh, if you're wondering, the goal is to deliver the right sushi order to the right customer in an increasingly crowded restaurant.)
I don't really know enough to assess this brave new world, and I do well recall that earlier "advancements" promised similar results with very little success. Still, it's something to keep an eye on.
Hat tip to Liz Tippett for sending me the article.
Wednesday, November 27, 2013
Those of you you read the post below on the NYU-UAW deal may have noticed in the embedded link some quotes from friend-of-the-blog, Bill Herbert. In doing so, you mave noticed that he has a new affiliation as he's just moved from the NYPERB to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, where he is now serving as Executive Director. He'll also be a Distinguished Lecturer at Hunter College. Here's a press release on the move:
Effective November 21, 2013, Bill Herbert was appointed as a Distinguished Lecturer at Hunter College, City University of New York and as the new Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. Prior to his recent appointment, Bill was Deputy Chair and Counsel at the New York State Public Employment Relations Board.
For over four decades, the National Center for the Study of Collective Bargaining in Higher Education and the Professions has served as a national labor-management center dedicated to studying the use of collective bargaining for advancing higher education and the working conditions of faculty and staff in colleges and universities. The National Center believes that the study of collective bargaining is essential for a knowledge-based dialogue concerning labor-management and educational issues, and is critically important for reasoned societal debate that will lead to social progress. It is comprised of labor and management professionals, practitioners, and scholars interested in studying contemporary and historical labor-management issues, best practices in collective bargaining, legal and legislative developments, and public support for higher education. It provides a clearinghouse and forum for scholarly research and ideas concerning labor relations, collective bargaining and labor law issues related to higher education. The National Center will be holding its 41st annual conference on April 6-8, 2014 at the CUNY Graduate Center: http://www.hunter.cuny.edu/ncscbhep The theme of the conference is Achieving Successful Results in Higher Education through Collective Bargaining.
Tuesday, November 26, 2013
- UPDATE: News was just released news that NYU and the UAW have agreed to an AAA-run election for teaching assistants. As part of the deal, the UAW will drop charges it filed with the NLRB and NYU promised to remain neutral. Also, the deal does not establish an election for research assistants. The election could happen early next year.
- The Supreme Court granted cert. today to determine if for-profit corporations can object to the contraception mandate of the ACA based on religious objections. Sure, it's not directly an employment case, but if the Court sides with the companies here, it will be a big change from what has long been a presumption against for-profit businesses avoiding employment mandates on religious liberty grounds.
- Last week, Boeing workers rejected a proposal by the company to give job guarantees for current employees in exchange for significant cutbacks for newer and future employees. That's a big turnaround from what has been a trend as of late in many unionized workplaces.
- Also last week, the Eleventh Circuit sided with the NLRB on the recess appointments issue. This probably doesn't have much of an impact given the Supreme Court's grant of cert. in Noel Canning, but it provides another voice on the Board's side.
Hat Tip: Michael Duff , Patrick Kavanagh, & Bill Herbert
Monday, November 25, 2013
The False Claims Act recently collided with New York's Rules on Professional Conduct before the Second Circuit, and the FCA came away the worse for wear. At issue in United States ex rel Fair Laboratory Practices Associates v. Quest was a district court's dismissal of a qui tam suit brought by a entity created for that purpose. The basis of the dismissal was that one of FLPA's principals had been General Counsel of the defendant. And not only did the district court dismiss the case but it also barred the plaintiff, its individual members, and the law firm representing it from bringing a subsequent qui tam action.
It's not news that attorneys are often unable to assert whistleblower rights that would be available to other employees because of the rules of professional conduct. But Quest is one of the relatively few cases where a federal right is pitched against state ethical rules. And the FCA is an unusual statute: while it also includes classic whistleblower protections, the suit in question was brought pursuant to the statute's qui tam provisions that authorize relators to file complaints in the name of the United States and to retain a portion of any recovery.
The Department of Justice has the right to intervene in a qui tam action, and the Second Circuit's affirmance of the district court's orders stressed that Justice was not precluded from prosecuting the case (although it declined that opportunity) nor were other potential plaintiffs precluded (although maybe some of the FCA's own provisions might bar them).
The Quest reasoning upholding both the dismissal and the disqualfications was pretty straightforward: the FCA did not preempt state ethics codes and former GC Bibi violated the NY rule against disclosing confidential information. While the relevant rule permits disclosure "to the extent that the lawyer reasonable believes is necessary . . . to prevent the client from committing a crime," the disclosures in question did not qualify. It was true that Bibi was resonable in believing that Quest had the intent to commit a crime, but he could not reasonably believe his discloures were necessary to prevent that crime.
That was because there were alternative means of preventing the crime in question, essentially the information available from other individual members (or perhaps from Bibi himself) that wasn't "protected client confidences."
The court's decision on this point relieved it of having to decide whether the mere filing of the qui tam suit violated New York's "side switching rule," which bars attorneys representing one side in a matter (Quest) from then representing the other (the US since a qui tam suit is in theory brought on behalf of the government). Such a holding would have been far broader than the decision actually rendered since, in theory at least, the Quest qui tam suit could have gone forward had Bibi been more circumspect in what he revealed.
Affirmance of the disqualification ruling was essentially fruit of the poisonous tree reasoning.
The Quest opinion repeatedly invokes the notion of balancing. Thus, it recognizes that it must balance federal and state interests in deciding the degree to which confidential information may be disclosed (although it also suggests that the NY Rule itself balances those interests by permitting disclosure necessary to prevent a crime), and it purportedly balanced the competing concerns of permitting vindication of legal rights against disqualification of plaintiff, its principals, and their attorneys.
But in the end, all this judicial balancing seems to mostly require attorney relators to do a lot of balancing themselves -- walking a tightrope between saying too much or too little. Qui tam claims have been held to pretty high pleading standards in the wake of Twiqbal, and it is easy to see how a plaintiff might feel the need to provide more rather than less information to support its allegations. While the Quest decision can be justified in terms of the text of the NY Rule, perhaps "necessary" to prevent a crime is too high a standard when a federal statute is at stake. A more appropriate standard would focus on the reasonableness of the disclosure in actually preventing the crime in question. At any rate, this is far from the first time that the courts have placed potential relators in very difficult positions.
Dana M. Muir (Stephen M. Ross School of Business at the University of Michigan) has just posted on SSRN her recently published piece in the Iowa Law Review entitled: Choice Architecture and the Locus of Fiduciary Obligation in Defined Contribution Plans.
Here is the abstract:
The insights of choice architecture have led to expanded use of default settings in defined contribution (DC) plans in both the United States and Australia. The two countries have taken somewhat similar approaches to the content of default investment products. However, they differ significantly in how they allocate the legal responsibilities associated with those default investment products. This paper compares the two approaches, particularly regarding the role of disclosure and the assignment of fiduciary responsibility. It concludes that Australia’s approach offers two lessons for the U.S. First, disclosure to and education of participants who are defaulted into investment products is inadequate to negate conflicts of interest and investment risk. Second, fiduciary responsibility for default investment products should be co-located with investment expertise and management. The paper suggests development of a new investment product, Safe Harbor Automated Retirement Products (SHARPs), based on these lessons.
I have had the privilege of reading this piece previously and like all of Dana's piece, it does a remarkable job identifying a problem based on a comparative analysis and then providing a practical, on-the-money solution to the problem that all ERISA stakeholders should be able to embrace as an effective approach to these problems with defined contribution plans. I hope there are perceptive legislators out there paying attention who will sponsor such legislation soon in order to improve the US occupational pension system for all workers.
Tuesday, November 19, 2013
It's almost Thanksgiving, so that means more issues over protests at Walmart and other stores over working conditions during Black Friday sales. This time, the NLRB's General Counsel has announced that it has finished its investigation of charges against Walmart for its treatment of employees involved in the protests last year. According to the NLRB:
The Office of the General Counsel found merit to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- During two national television news broadcasts and in statements to employees at Walmart stores in California and Texas, Walmart unlawfully threatened employees with reprisal if they engaged in strikes and protests on November 22, 2012.
- Walmart stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.
- Walmart stores in California, Florida, Missouri and Texas unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.
The Office of the General Counsel found no merit, absent appeal, to alleged violations of the National Labor Relations Act against Walmart, such as the following:
- Walmart stores in Illinois and Texas did not interfere with their employees’ right to strike by telling large groups of non-employee protesters to move from Walmart’s property to public property, pursuant to a lawful Solicitation and Distribution policy, where the groups contained only a small number of employees who either did not seek to stay on Walmart’s property or were permitted to remain without non-employee protesters.
- Walmart stores in California and Washington did not unlawfully change work schedules, disparately apply their policies, or otherwise coerce employees in retaliation for their exercise of statutory rights.
This is obviously still early int he process, and it's not as if Walmart will settle, so there's a long way to go on these complaints. But it could be an interesting case to watch, particularly as a high-profile example of nonunion employees being protected by the NLRA.
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Monday, November 18, 2013
In Cosey v Prudential, (4th Cir. Nov. 12, 2013), the Fourth Circuit held that the common plan formulation "proof satisfactory to the administrator" does not unambiguously confer discretion on the administrator and thus subjects the administrator's decisions to de novo judicial review (as opposed to arbitrary and capricious review under the Firestone/Glenn standard).
Like Jon, I find this decision interesting, as it has the potential to cut back on the abuse-of-discretion standard of review for many ERISA plans. However, I suspect that in response to this Court's decision, we are likely to see many plan amendments adding language which more unambiguously states the plan's intention to get the benefit of Firestone discretionary review for its benefit determination decisions.
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Thursday, November 14, 2013
Cunningham-Parmeter on Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination
Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families’ domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.
Wednesday, November 13, 2013
Today, the Supreme Court heard arguments in Unite Here v. Mulhall, which addresses whether neutrality and card-check agreements, among others, run afoul of Section 302. I haven't had a chance to review the argument transcript, but based on reports of the argument, it seems to be falling along the expected lines. As usual, Justice Kennedy appears to represent the swing vote and his statement that Mulhall's argument "is contrary to years of settled practices and understandings" should give unions some hope. That said, many of the Justices seemed disturbed by part of the deal in which the union said it would contribute $100,000 to promote a referendum that the employer supported. This echoes my previous concern about this case and why the union would seek cert. Although the Court may not hold all neutrality and similar agreements to fall under Section 302, they might well hold that other exchanges--particularly ones involving significant expenditures--do. Jack Goldsmith makes a similar point in his post at On Labor.
Finally, the standing issue (resulting from, among other things, the fact that the case is in a right-to-work state) was clearly on the mind of some Justices. Thomas Frampton (a recent Berkeley grad) may score himself a Supreme Court cite with his recent essay arguing this standing point.
Hat Tip: Patrick Kavangh & James Young (whose colleague at NRTWLDF argued on behalf of Mulhall)
Sunday, November 10, 2013
While Justice Scalia's caution that Title VII is not "a general civility code" has been repeatedly invoked, it hasn't stopped the spread of employer civility codes. Such rules probably owe something to the desire to sanitize the workplace as a prophylactic against sexual or other harassment claims, but there also seems to be a deeper concern about, well, civility.
A quick Google search reveals warnings that swearing can get you fired, countered by claims that profanity improves productivity, and arguments that cursing will make you more popular. As is often the case, social science -- or at least the blogosphere -- seems to leave us with fewer answers than questions.
In any event, employers seem to be responding to the issue with policies that bar profanity, regardless of whether it has any connection to actionable harassment. Some how-to versions of the policy have their amusing side, including one source that sounds like a 12-Step program for recovering swearers and recommends coming up with socially-acceptable substitutes for profanity. Egad.
While "profanity" originally had very strong religious connotations, the term today is used in this context to embrace coarse or vulgar speech. Barring racial slurs or sexualized references obviously has a close connection to hostile work environment claims, and it's not hard to see how other terms can implicate such claims under age and disability antidiscrimination laws. That said, there really are coarse insults that are not gender specific nor especially sexual -- "asshole" comes to mind, as do common words for excretory functions.
But a recent district court case, Griffin v. City of Portland, raised yet another potential problem for some varieties of profanity -- this time reverrting to in the term"s original meaning of "desecrating what is holy or sacred." The claim was harassment on the basis of religion. While there was other evidence of hostility to plaintiff because of her Christian beliefs, a recurrent theme was her objections to others taking God's name in vain. One dramtic incident was triggered by her objections to the use of "Jesus Christ" as an expletive.
The court denied summary judgment to the City, but did so by finding a fact question of whether the references to God were because of plaintiff's religion. Presumably, proof that such usage was part of the speakers' normal speech patterns would avoid any liability. The court wrote:
For instance, it is unlikely that a coworker who used a curse word without knowing that the word offended Ms. Griffin for religious reasons used the word around Ms. Griffin because of her religion. Rather, such a coworker likely used the curse word without contemplating whether it would bother or offend anyone, merely because he or she was in the habit of using profanity. Evidence that the coworker quickly apologized and refrained from cursing in Ms. Griffin's presence thereafter would bolster the argument that that coworker had not cursed because of Ms. Griffin's religious beliefs, although such evidence is not necessary.
Makes sense, right? But what if the co-worker, when told of Ms. Griffin's objections, did not cease using such language? Not responding to a civil request to avoid offensive language might not be praiseworthy, but does continuing a preexisting speech pattern show intent to harrass or just garden variety insensitivity? Or even, if we believe some of the commentary, an inability to change ingrained patterns.
Of course, an antiprofanity policy would tend to insulate employers from having to worry about these concerns -- although enforcing such a policy poses its own problems. Nevertheless, cases like Griffin might well add impetus to what already seems to be a growing phenomenon in many workplaces.
Friday, November 8, 2013
Our own Paul Secunda has a new paper available for download on SSRN: An Analysis of the Treatment of Employee Pension and Wage Claims in Insolvency and Under Guarantee Schemes in OECD Countries: Comparative Law Lessons for Detroit and the United States. Here is the abstract:
To put the plight of the Detroit city employees into an international and comparative context when it comes to considering how their pension and wage claims should be treated in bankruptcy, it is instructive to consider how similar employee pension and wage claims would be treated in corporate insolvencies in other countries. It is necessary to focus on corporate insolvencies in other countries as the relevant comparison because most other countries do not have government systems in which municipalities have the same financial independence to borrow money and take on debt as municipalities do in the United States as part of the municipal bond market. Additionally, exploring the corporate bankruptcy systems in other countries provides a beneficial way to consider how to approach municipal bankruptcy situations in the United States, especially since corporate and municipal bankruptcies in the United States have a number of features in common when it comes to employee creditor claims.
This article therefore undertakes a comparative analysis of the treatment of pension and wage claims in insolvency proceedings and under guarantee schemes in the thirty-four member countries of the Organization of Economic Cooperation and Development (OECD) to understand whether the United States’ approach to employee claims in bankruptcy (in both the corporate and municipal context) is consistent with international norms. After completing the comparative analysis (which is comprehensively set out in the Country-by-Country Appendix at the end of this paper), this article then highlights common approaches to these issues, as well as important distinctions, setting up a number of tables to summarize the results.
All in all, most OECD countries have adopted hybrid systems which combine both some form of priority for both pension and wage claims, as well as some form of guarantee fund to complement the insolvency system. It is especially important to have these guarantee funds in place because insolvency processes can last for years, while the guarantee schemes are more likely to pay employees their claims within weeks or months. Unfortunately, the United States provides only limited priorities in most bankruptcy proceedings (and no such wage or pension priorities in Chapter 9 municipal proceedings), a guarantee system under the Pension Benefit Guaranty Corporation (PBGC) that is limited to pension plans, and then only to private-sector defined benefit pension plans. Neither private-sector defined contribution plans nor public sector pension plans come under a guarantee scheme in the United States.
One possible approach to employee claims in both municipal and corporate bankruptcies would be to pass pension and bankruptcy reform laws similar to what Canada enacted in 2008 as part of its Wage Earner Protection Program Act (WEPPA). Unlike the American system, WEPPA provides limited absolute priorities for pension contributions and a broad array of wage claims in insolvency, as well as a robust wage guarantee scheme. As to the policy reasons supporting this approach, it appears that greater emphasis is placed on the need to protect the weakness of employees creditors in the insolvency process as opposed to focusing on the need to ensure the existence of cheap, accessible credit for companies and governments.
This article concludes that given the relative vulnerability of employees and the sophistication of most lenders, the United States should balance these interests to provide increased protection for employment claims during municipal and corporate insolvency proceedings through giving heightened priority treatment to employees pension and wage claims in bankruptcy in tandem with a federally-operated guarantee scheme for both pension and wages claims.
An important and timely topic, especially as the public pension crisis looms large in this country.
Thursday, November 7, 2013
Michele Tiraboschi, ADAPT Scientific Coordinator at the University of Bergamo in Italy, writes to inform us that the call for applications for the International Doctoral School in Human Capital Formation and Labour Relations promoted by ADAPT and the University of Bergamo has been published.
40 positions are available, 22 of them will be funded through a scholarship and 4 through advanced-level apprenticeship contracts. The deadline to send applications is 18 November 2013 at 12.00 a.m.
This year, they are providing the opportunity to enter an Industrial PhD in Labour Productivity and Workplace Change, in order to strengthen the cooperation between employers and professionals within the productive system. In addition, by way of special agreements, a number of positions will be available to workers employed in highly qualified jobs at their own companies, provided that they pass the selection procedures and are admitted to the PhD Programme.
Employers who are interested in supporting the School or hosting interns, as well as prospective candidates, can send an email to email@example.com for further enquiries.PS
Wednesday, November 6, 2013
Malcolm Sargeant and Michele Tiraboschi of ADAPT in Italy have sent the latest issue of the E-Journal of International and Comparative Labour Studies, which is concerned with whistleblowing.
Malcolm and Michele would like to thank David Lewis and Wim Vandekerckhove who guest edited this edition, and the other authors for their excellent contribution.PS
Sam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.
Here is the abstract:
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.
Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.
This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam's social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.
An important new contribution to employment law theory that should be on the top of any workplace prof's reading list.
Congratulations to Neville Harris (Univ. of Manchester School of Law (UK)) on the publication of his new book: Law in a Complex State: Complexity in the Law and Structure of Welfare.
From the publisher:
Approximately half of the total UK population are in receipt of one or more welfare benefits, giving rise to the largest single area of government expenditure. The law and structures of social security are highly complex, made more so by constant adjustments as government pursues its often conflicting economic, political and social policy objectives. This complexity is highly problematic. It contributes to errors in decision-making and to increased administrative costs and is seen as disempowering for citizens, thereby weakening enjoyment of a key social right.
Current and previous administrations have committed to simplifying the benefits system. It is a specific objective of the Welfare Reform Act 2012, which provides for the introduction of Universal Credit in place of diverse benefits. However, it is unclear whether the reformed system will be either less complex legally or more accessible for citizens.
This book seeks to explain how and why complexity in the modern welfare system has grown; to identify the different ways in which legal and associated administrative arrangements are classifiable as 'complex'; to discuss the effects of complexity on the system's administration and its wider implications for rights and the citizen-state relationship; and to consider the role that law can play in the simplification of schemes of welfare. While primarily focused on the UK welfare system it also provides analysis of relevant policies and experience in various other states.
This book represents the culmination of Neville's project on 'complexity' in welfare systems throughout Europe. Although the book focuses on the United Kingdom and some other non-US countries, the lessons to be learned are valuable ones as we consider going forward how to improve the complex social insurance system that we have here in the United States.