Workplace Prof Blog

Silber on Congress Moving on ENDA Now

Very timely commentary by veteran labor and employment law practitioner, Susan Silber, on the need for Congress to move on the Employment Non-Discrimination Act (ENDA) now.

A taste from her post on the ACSBlog:

For months now, we have been waiting for congressional action on the Employment Non-Discrimination Act (ENDA), (HR 3017) and (S1584), federal legislation to end workplace discrimination based on sexual orientation and gender identity. There has been a sense that action on this bill was due shortly after work was completed on the hate crimes bill, which was signed into law last month.

Recently, House and Senate Committees held hearings on ENDA. Testimony in both chambers in favor of this measure has been compelling, illustrating the nationwide problem of job discrimination against lesbian, gay, bisexual and transgender people, outlining the inadequacy of federal law to address the issue, delineating the inconsistent patchwork of state and local laws that presently exists, and demonstrating how enacting ENDA to include its provisions among our nation's existing system of non-discrimination laws would help correct these problems . . . .

Mark-up was postponed this week, but from my perspective it should be rescheduled immediately or soon after the Thanksgiving recess. There is no reason to wait to enact this legislation, which is needed and long overdue.

Needless to say, I could hardly agree more with these sentiments.

PS

Two New Blog Posts on Ricci by Zimmer

Do I sense a forthcoming law review article here?

Mike Zimmer (Loyola-Chicago) continues his wonderful commentary on the ins and outs of the Supreme Court's controversial Ricci decision on the Concurring Opinions blog. 

Since our last blog post, Mike has posted two more commentaries:

The first post concerns the relationship between disparate treatment and disparate impact law in the case.

The second post focuses on color-blind standards in a race conscious society.

In my humble opinion, anyone who is interested in understanding the impact of Ricci on employment discrimination law has got to read this series of posts by Mike.

PS

Goldscheid on Gender Violence and Work in the United States and South Africa

Julie Goldscheid (CUNY) has posted on SSRN her working paper entitled: Gender Violence and Work in the United States and South Africa: The Parallel Processes of Legal and Cultural Change.

Here is the abstract:

This article takes on the parallel processes of law reform and cultural transformation by comparing gender violence reform projects in the United States with those in South Africa. It does so by focusing on one strand of advocacy, that focusing on the economics of abuse. Since economic independence is central to women’s ability to navigate abuse, women’s ability to work in its aftermath is critical. This article compares each country’s current and potential reform projects to address the ways gender violence impacts survivors’ ability to get and keep their jobs.

Despite the stark contrasts between the countries’ respective legal and economic contexts, the challenges faced by advocates are different in degree rather than in kind. This article reviews the prevalence of gender violence in each country and the extent and nature of women’s workplace participation. It places reforms addressing the impact of abuse on employment in the broader context of each country’s domestic and sexual violence reform movements and describes employment-related projects, with a focus on those in South Africa.

The similarities and differences in economics, culture and law underscore several lessons about the possibility of achieving transformational change. The article identifies several theories under which South Africa’s progressive legal frameworks could afford recourse to survivors whose employment is adversely affected as a result of abuse. Nevertheless, the comparison highlights the inherent similarities of law reform projects that seek to transform historic biases and cultural norms. It underscores the importance of enforcement and implementation, of centering anti-subordination initiatives in the context of equality, and of maintaining the difficult and ongoing project of challenging bias in its many forms, in order to create both legal change and cultural transformation.

Another important comparative law/employment law piece that should be of interest to anyone concerned about gender issues in the workplace.

PS

Recently Published Scholarship

Articles

• Megan E. Mowrey, Discriminatory Retaliation: Title VII Protection for the Cooperating Employee, 29 Pace L. Rev. 689 (2009).
• Sean M. Anderson, Risky Retirement Business: How ESOPs Harm the Workers They Are Supposed to Help, 41 Loyola U. Chicago L.J. 1 (2009).

Student Scholarship

• Daniel V. Dorris, Fair Labor Standards Act Preemption of State Wage-and-Hour Law Claims, 76 U. Chi. L. Rev. 1251 (2009).

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New Labor and Employment ALI Members

With the continuing interest in the Restatement of Employment Law Restatement, it's good to see more labor and employment law professors on the list of new ALI members.

Maria Ontiveros (San Francisco), Joanna Grossman (Hofstra), Mark Rothstein (Louisville) and current NLRB Chairman, Wilma Liebman, are four of the new members with significant labor and employment law backgrounds.

Here's a link to the press release.

PS

Conkright Amicus Brief

One of the Supreme Court's labor and employment cases this term is Conkright v. Frommert, which addresses the question of whether a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone. 

Our very own Paul Secunda, along with eight other professors, have just filed an amicus brief in the case on behalf of the respondents/employees (go here to download Law Professors' Conkright Amicus Brief in Support of Respondents).

Should be an interesting case, so stay tuned.

-JH

Woman Successful in KBR Sexual Assault Arbitration

From ABCNews.com:

Tracy Barker, who says a U.S. State Department employee sexually assaulted her in Iraq in 2005 has won $2.93 million in arbitration from KBR, the military contracting company that employed her. As ABC News exclusively reported, the federal government had refused to prosecute the man Barker says attacked her, even though the State Department recommended he be charged . . . .

KBR has challenged the award and wants it modified. "At no time has Ms. Barker's claim of rape ever been confirmed," said Heather Browne, the director of communications, in an e-mail to ABCNews.com.

"I was raped," Barker responded. "KBR knows that and they're wrong about that." 

Makes you wonder why the feds refused to prosecute in the first place, no?  We recovered a related story (no, this is not an isolated incident) back last June.

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McKennirey on Reforming the Labour-Trade Linkage

David Doorey (York Univ. (Canada)) writes to tell us that a big wig Canadian official, John McKennirey, who was Canada's point person on North American Agreement on Labor Cooperation (NAALC) bargaining and held various other senior positions in the Canadian government responsible for developing trade and labour linkages, has written a short article setting out his ideas for reform of trade agreements and the labour linkage.

Mr. McKennirey has 'published' his thoughts on Reforming the Labour-Trade Linkage on David's blog.  Because one of the main audiences he hopes to reach is Americans, we are pleased to post a link to it on this blog as well.

PS

FMLA Podcast on Military Families Amendments

As some readers may be aware, in late October, President Obama signed into law several amendments to the FMLA that expand the FMLA rights of military families.  The new law significantly broadens an employee's right for "exigency leave" due to military service and to care for a servicemember. 

 Here is a link to a podcast by Jeff Nowak and his firm which describes the new changes to military family leave and highlights possible FMLA amendments to keep an eye on over the next several months.

What I find particularly interesting about these FMLA amendments is their impact on the already existing military leave provisions in USERRA. My understanding is that whereas FMLA focus on the needs of a military's persons family (qualifying exigency leave and military caregiver leave), USERRA focuses on the leave needs of the military individual.

The new amendments in October 2009 expand FMLA entitlement now applies to regular armed forced (not just reserve and guard members) and expands the leave entitlements to any military service (not just Afghanistan and Iraq). Military caregiver leave has been expanded to apply to those who are no longer currently in the military (so now applies to permanent disabilities of veterans within five years of military service and also to injuries that have been aggravated by current military service).

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More Support for Two-Member Board Decisions

Add another court of appeal to the list of those supporting the NLRB's power to issue two-member decisions.  This time it's the Fourth Circuit in Narricot Indus. v. NLRB.  That makes it four courts (1st, 2nd, 4th, and 7th Circuits) to one (D.C. Circuit).  The Fourth Circuit's holding included this analysis of Section 3(b) of the NLRA and the D.C. Circuit's decision (see here for a previous discussion of the provision):

The D.C. Circuit has reached a contrary conclusion, reading § 3(b) as creating distinct quorum requirements for the Board and designated three-member groups. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472- 73 (D.C. Cir. 2009). That court thus concluded that the phrase "except that" is "present in the statute only to indicate that the delegee group’s ability to act is measured by a different numerical value." Id. at 472. In the court’s view, the Board quorum requirement of three members "must be satisfied ‘at all times,’" regardless of whether the Board’s authority is delegated to a group of its members. Id. (quoting 29 U.S.C. § 153(b)). We disagree with this view, concluding that it is based on an overly narrow construction of the modifying phrase that directly follows the three-member quorum requirement: "except that two members shall constitute a quorum of any group designated pursuant to [the delegation provision]." 29 U.S.C. § 153(b) (emphasis added). The statutory phrase "except that" ordinarily introduces an exception. Had Congress desired to write the statute as the D.C. Circuit reads it, it would have simply omitted the words "except that" from § 3(b). The statute would then contain two independent quorum clauses, one applicable to the Board and the other to three-member groups. As it is, however, § 3(b) contains a quorum requirement applicable "at all times," except where the Board has delegated its authority to a three-member group. Because the Board made such a delegation in this case, we see the D.C. Circuit’s reading of the statute as unpersuasive.

Now it's just up to the Supreme Court to sort this mess out.

Hat Tip:  Patrick Kavanagh & Dennis Walsh

-JH

Work Email: "I Always Feel Like ... Somebody's Watching Me"

No, this post is not about the singer Rockwell or that annoying Geico commercial, but about whether you should just assume that your boss monitors your email.

A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:

Big Brother is watching. That is the message corporations routinely send their employees about using email.

But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.

To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.

Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.

Hat Tip: Joe Seiner

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11th Cir. Miserly Construction of Title VII

No more jumps out of the page and slaps you in the face, but the Eleventh Circuit still does not think that a worker often called ‘boy’ established a racially hostile environment.

In Alexander v. Opelika Pub. Schs., No. 08-11014 (11th Cir. 11/10/09), a public school employee in Alabama who allegedly was called “boy” eight times over two years and heard a supervisor comment about a noose did not present sufficient evidence to survive summary judgment on his racial harassment claim.

If we're lucky, the 11th Circuit's miserly construction of Title VII will be slapped down again by the Supreme Court.

Hat Tip: Hank Leland

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Drummonds on Reforming Labor Law by Reforming Labor Law Preemption Doctrine

Henry Drummonds (Lewis & Clark) has provided me with a draft of his recent article in the Louisiana Law Review: Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy.

From the Introduction:

The road forward for labor relations policy in the United States lies not in Washington, D.C., but in state capitols. As the current debate over the Employee Free Choice Act (EFCA) reveals, stifling federal labor law orthodoxy grips the private sector union movement. Indeed private sector collective bargaining faces the vanishing point; to the ninety-two point four percent of private sector employees who hold their jobs outside the unionized sector, collective bargaining constitutes, at best, an abstraction. Ironically, public sector unions, governed largely by state law, flourish. Why do blue, pink, and white-collar public employees flock to unions while their counterparts in the private sector do not? . . . .

Not surprisingly the twenty-one “Right to Work” states count among the lowest rates of membership. Despite this widely varying support for unionization in the states, judicially-created, broad federal labor relations preemption doctrines ensnarl all states in a stifling and exclusive, yet strikingly inconsistent, federal labor law regime.

This is an excellent article and one that I agree with wholeheartedly.  I wrote on similar issues in the narrower workplace captive audience here, and more generally about the ironic necessity of state regulation of labor law here. Henry adds new arguments on why NLRA preemption doctrine should be narrowed.

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Zimmer on the Disparate Impact Consequences of Ricci

Mike Zimmer is up on Concurring Opinions with his next installment on the meaning of the Ricci v. DeStefano case for the future of employment discrimination law.  This current post focuses on the disparate impact consequences of Ricci.

Here's a taste:

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact . . . .

Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24th on the list and thus not eligible to be promoted.

Mike promises that there will be a couple more Ricci blog posts in the near future.  In the meantime, Mike reports (via the Connecticut Employment Law Blog) that Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC.  

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Most Unusual Employee Requests

Career Builder, the online job seekers/help wanted site recently posted the results of one of its entertaining surveys, this one on most unusual employee requests. Here are some of the best:

• Request to allow people to change clothes in their cubicles.
• Request to add a tanning bed to the break room.
• Request to put beer in the vending machine.
• Request that jail time be covered under family medical leave.
• Request to institute bikini Fridays.
• Request to only be required to work during daylight hours because employee is scared of the dark.
• Request for a special smoking area for medical marijuana.
• Request that the HR person wear nicer shoes.
• Request for more time off to pursue side business as a clown.
• Request to replace his desk with a futon so employee could lay down and work.
• Request that the lactation room with gliding chair be used for naps, so everyone can use it.
• Request to install a swimming pool for employees to use.
• Request to have the team meeting to be held in Hawaii.

I don't know. The team meeting in Hawaii seems like a good idea to me. Maybe not so much the bikini Fridays.

MM

Yamada: Current Status of Workplace Bullying

David Yamada (Suffolk), leader of the anti-bullying movement, has just posted on SSRN his article (forthcoming Comparative Labor Law & Policy Journal) Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment.  Here's the abstract:

This article details the early history of efforts to make American employment law more responsive to workplace bullying, covering a period roughly from 2000 to the present day, with much of the commentary grounded in the author’s personal involvement in these initiatives. It starts by examining research, education, and advocacy efforts concerning workplace bullying and its legal implications. It then explains the major provisions of the latest version of the Healthy Workplace Bill, model anti-bullying legislation drafted by this author that has been the basis of bills introduced in over a dozen states' legislatures since 2003. The article closes with an assessment of the future of legal and policy initiatives to protect workers against severe workplace bullying in the United States.

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EBRI Reports

Employee Benefit Research Institute has just released a trio of new reports:

• Craig Copeland, Retirement Plan Participation and Asset Allocation, 2007.
• Paul Fronstin, Availability, Contributions, Account Balances, and Rollovers in Account-Based Health Plans, 2006-2009.
• Craig Copeland, Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2008.

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Canadian Views on EFCA

Just Labour: A Journal of Work and Society, which is an electronic journal published by the York University's Centre for Research on Work and Society, has just published a collection of articles entitled, "A Canadian Perspective on the U.S. Employee Free Choice Act."  The collection is intended as a response to some of the misstatements made about Canada's experience regulating certification.  

The articles look really good, so check them out.

-JH

EEOC Listening Sessions on ADA Amendments

The EEOC is holding listening sessions on its proposed rules interpreting the ADA Amendments Act.   BNA's Daily Labor Report (subscription required) has a story on the first session. As is no surprise, disability groups are happy and employer groups believe that the EEOC is pushing the envelope too far.  One interesting note is that it looks like the final rulemaking could (emphasize "could") occur in March.

-JH

Anti-Sweatshop Victory

The student anti-sweatshop movement has just achieved a big victory in pressuring Russell Athletic to rehire 1,200 workers fired in Honduras after they unionized.  The student pressure prompted over 90 colleges to end Russell's ability to use the schools' logos.  Ultimately, it resulted in Russell agreeing to to rehire the workers, open a new unionized plant, and remain neutral at it's other Honduran plants.  As reported by Steven Greenhouse (NY Times), the pressure was significant:

Going beyond their campuses, student activists picketed the N.B.A. finals in Orlando and Los Angeles this year to protest the league’s licensing agreement with Russell. They distributed fliers inside Sports Authority sporting goods stores and sent Twitter messages to customers of Dick’s Sporting Goods to urge them to boycott Russell products.

The students even sent activists to knock on Warren Buffett’s door in Omaha because his company, Berkshire Hathaway, owns Fruit of the Loom, Russell’s parent company. . . .

As part of its campaign, United Students Against Sweatshops contacted students at more than 100 campuses where it did not have chapters, getting them involved, including at Western Kentucky University in Bowling Green, where Fruit of the Loom has its headquarters. The group helped arrange a letter signed by 65 members of Congress, who voiced “grave concern about reports of severe violations” of labor rights at Russell.

As Greenhouse notes, the troubles at Russell were initiated by a critical report by the Worker Rights Consortium, an independent monitoring and compliance group started through the student anti-sweatshop movement.  Mark Barenberg (Columbia) has been heavily involved with the Consortium and has written about the good work it's been doing.

-JH