Workplace Prof Blog

The Election Rules Are Back

One big question when the NLRB adopted the pared down set of election rules was what the Board would do if/when it got more members.  Given that the recess appointments have happened, it's not a big suprise to think that the Board would try to move ahead in some fashion--which is exactly what Chairman Pearce has said will happen.  There's obviously going to be a political element to this, although I wonder how much more this matters given what labor proponents are already doing, even now that Boeing has gone away.  Of more interest to me is what the three new Board members will think about the proposals and possible news ones. I've mentioned before that I thought some of the dropped proposals made a lot of sense (like using e-mail where warranted), but there were still a lot of open questions (e.g., what to do about  blocking charge policy).  And, of course, there could be entirely new things put on the table.

My guess is that things will progress slowly for a while as the new members get settled in and finally get a chance to provide their input.  In fact, we could even be looking at an additional comment period if newp proposals are added.  Stay tuned . . . .

-JH

CEPR Report on Low Wage Work

The Center for Economic and Policy Research, a progressive economic thinktank, has issued a report on low wage work in rich countries. Low Wage Lessons compares the percentage of the workforce in low wage work, the strength of collective bargaining, and the level of social safety net, among other things, in developed countries. From the press release:

The experience of the United States stands primarily as a model for how not to succeed in reducing low-wage work. The United States has the lowest unionization rate among rich countries, a weak minimum wage, a stingy benefits system, and the highest rate of low-wage work among rich economies. About one-fourth of U.S. workers are in low-wage jobs, according to the standard international definition of low-wage work of earning less than two-thirds of the national median wage. (The median wage is the wage received by the worker exactly in the middle of the wage distribution.)

In the United States, the minimum wage and the Earned Income Tax Credit (EITC) are the two most important policies in place to fight low pay. But, the report argues that they have largely been ineffective.

"The minimum wage and the EITC could be excellent tools to fight low-wage work," [John] Schmitt[, the author of the report,] said, "but, they have been set far too low to make a difference."

The report also emphasizes that low pay is only the most obvious problem facing low-wage workers in the United States. Low-wage workers are also far less likely to have health insurance, paid sick days, paid family leave and other benefits that are common in higher-wage jobs.

And from the web summary of the report, 

Over the last two decades, high – and, in some countries, rising – rates of low-wage work have emerged as a major political concern. According to the Organization for Economic Cooperation and Development (OECD), in 2009, about one-fourth of U.S. workers were in low-wage jobs, defined as earning less than two-thirds of the national median hourly wage (see first figure below). About one-fifth of workers in the United Kingdom, Canada, Ireland, and Germany were receiving low wages by the same definition. In all but a handful of the rich OECD countries, more than 10 percent of the workforce was in a low-wage job.

If low-wage jobs act as a stepping stone to higher-paying work, then even a relatively high share of low-wage work may not be a serious social problem. If, however, as appears to be the case in much of the wealthy world, low-wage work is a persistent and recurring state for many workers, then low-wages may contribute to broader income and wealth inequality and constitute a threat to social cohesion. This report draws five lessons on low-wage work from the recent experiences of the United States and other rich economies in the OECD.

Lots of interesting data and analysis.

MM

NLRB GC Issues Report on Social Media Cases

NLRB Acting General Counsel Lafe Solomon has just released a Report of the Acting General Counsel on Social Media Cases.  This report describes the 14 cases the NLRB has seen recently.  You can follow this link to the Report or download it here.

Hat tip: Sharon Steckler (NLRB Region 16).

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Gould on the NBA Lockout

Bill Gould has just published, in Stanford Law Review Online, a retrospective on the 2011 NBA lockout.  Bill's take-away: "What appeared to be a rout of the players in November emerged as a reasonable face-saving compromise."  The article is The 2011 Basketball Lockout: The Union Lives to Fight Another Day—Just Barely.

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Fourth Circuit: State Courts Lack Jurisdiction over Title VII Claims

Jon Harkavy (Patterson & Harkavy) writes to tell us of Bullock v. Napolitano.  Rather than re-invent the wheel, I'll just post Jon's description of the case:

[The] Fourth Circuit ...decision of [Bullock v. Napolitano], issued Monday afternoon, [] effectively forecloses the ability of a federal employee to file a Title VII decision in state court.  Judge Niemeyer wrote the majority opinion based largely on Title VII's silence about a waiver of governmental immunity in state court suits.  Judge Gregory wrote a dissent that provoked a somewhat pointed rejoinder by footnote in the majority opinion.  The issue may be cert-worthy, especially if other circuits have disagreed with the majority.  In any event, I thought readers of the blog (and their students) would be interested in the juxtaposition of the two opinions.

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Davidov on Labour Law's Goals

Guy Davidov (Hebrew U.) has just posted on SSRN his article Articulating Labour Law's Goals: Why and How.  Here's the abstract:

It may seem obvious that before doing anything – let alone something as important as interpreting or reforming labour law – we must ask ourselves what exactly is the goal of what we do. This seems to be the only rational approach to such tasks. Yet quite often we do things automatically, without stopping to think about them. The goal of this article is to explain why we need to articulate explicitly the goals of labour law, and how this should be done. It proceeds in two parts. Part I addresses the question of "why" and "when" is it necessary to explain (to ourselves and to others) the goals of labour law. Part II then discusses the "how", going through a number of steps that can assist us in articulating goals, and attempting to resolve a number of issues that arise when starting to think about the best way to approach this problem.

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Western Ontario Labour Law Conference: Faultlines and Borderlines in Labo(u)r Law

The University of Western Ontarion Law Faculty is hosting a wonderful set of labour law conferences on March 2 and 3, 2012. The theme of the 2012 lecture/conference will be Faultlines and Borderlines in Labo(u)r Law: The Future of the Wagner Act in Canada and the United States. This is a joint project of the UWO Faculty of Law, Koskie Minsky, Heenan Blaikie, and the Canada-US Institute at Western.

On Friday, 2 March 2012, Ms. Wilma Liebman, the former Chair of the National Labor Relations Board, will be delivering the seventh Koskie Minsky University Lecture in Labour Law. She was appointed Chair of the NLRB by President Obama as one of his first acts after assuming office in January 2009. The title of her Lecture will be: Labor Law, Economic Justice and Political Rhetoric: Reflections on the Wagner Act.

The following day, Heenan Blaikie LLP and the Faculty of Law at the University of Western Ontario will be hosting the full-day conference. There will be four panels, on the themes of human rights in the workplace, the role of trade and investment in shaping labour law, the crisis in public sector collective bargaining, and the future of the Wagner Act, with distinguished speakers from both sides of the 49th parallel on each panel. With unionization at 29% in Canada, and 12% in the United States, this conference will assess the viability of the Wagner Act and its ability to continue to promote industrial fairness.

The conference will conclude with a Saturday evening dinner, with the Honourable Lisa Raitt, Federal Minister of Labour as the guest speaker.

I am honored that I will be speaking at the conference as well.

The conference web page can be found here and that web page contains a link to the whole conference brochure.

PS

Washington Post-Kaiser Family Foundation poll on race, sex, attitudes and feelings of well-being

The Washington Post and Kaiser Family Foundation have released the results of a recent survey on feelings of well being and attitudes by race and sex on such wide ranging topics on how secure people feel, what they are worried about, and whether they think race or sex discrimination continues to be a problem. The poll has longitudinal data from 5 years ago, and also goes back farther on at least one of the questions. I use these kinds of surveys to help animate class discussions, especially  to talk about why people might choose to litigate or what people might be prepared to believe. It helps ground that discussion in something more than my gut feeling about what people value, which tends, not surprisingly, to be skewed to what I value.

MM

More Labor News . . . .

There have been several more recent labor developments/stories that are worth a look.  Among them:

• A possible issue for the Supreme Court?  Disagreeing with both the Third and Fourth Circuits, the Eleventh Circuit (2-1) in Mulhall v. UNITE HERE, has just held that neutrality agreements might be considered a "thing of value" that violates Section 302 of the LMRA.  This reversed a motion to dismiss, so the court avoided details about when such agreements would violate Section 302, but this could be a big deal that warrants the Court's attention (I'm pretty sure petitions for cert. are in the works as I write this).  If it does get to the Court, I'd be willign to bet that the 11th Circuit gets overturned.  Even for a labor-unfriendly Court, this interpretation is a stretch; note the lack of virtually any examination of the intent of Section 302 in Mulhall.  But we'll see.

• A fascinating piece by the New York Times on why Apple and other companies manufacture in Asia.  Costs is obviously part of the story, but perhaps less than you thought.  Of particular interest given all we're going to year this election year about economic inequality.

• Another NY TImes article on employers' increased use of lockouts (theme:  it's not just for professional sports anymore).

• Part of the FAA Authorization compromise affected the NMB's new election rule.  The rule stands, but there was a compromise that now requires a 50% showing of interest to get an election (an increase from 35%), allows employees to vote for "no union" in some runoff elections, and requires the NMB to hold public hearings before it engages in major rulemaking.

• Another IKEA plant has voted to unionize.  Apparently, things were much less hostile in the Perryville, MD warehouse than the previous campaign in Danville, VA, and the union (IAM) won 183-119.

Hat Tip:  Dave Casserly & Dennis Walsh

-JH

Recent NLRB Decisions

There have been a couple notable NLRB decisions recently.  Among them:

• The NLRB, in a case from the previous Board, has extended its Speciality Healthcare rule to a non-healthcare workplace in DTG Operations.  The bottom line is that this continues the Board's increased willingess to approve a unit that does not include all employees in the same facility.  Also notable is an especially strong dissent by Member Hayes.
• In Flaum Appetizing, a 2-1 Board concluded that an employer trying to use Hoffman Plastic to avoid paying back to employees who are allegedly undocumented must provide a factual basis for its claim. This burden will require employers to give specifics on the lack of documentation, such as fraudulent documents that employees used to get their jobs

Hat Tip:  Patrick Kavanagh & Dennis Walsh

-JH

Board GC Seeks Changes in Deferral Policy

Citing concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures, NLRB Acting General Counsel Lafe Solomon has proposed that the Board consider revising the existing policy of deferring charges to arbitration in certain circumstances.

When it is anticipated that charges alleging violations of Section 8(a)(1) and (3) – which include discharges or other discrimination based on union activities -- will not be resolved or arbitrated within a year, Acting General Counsel Solomon would urge that the Board not defer the case, but rather decide the case on the merits.  He would also apply the new policy to cases that have already been deferred for more than one year.  AGC Solomon specifically targeted cases involving issues of unlawful discrimination and interference with workers’ protected rights because they are significant and uniquely within the Board’s expertise.

Here's the Board's press release; here's supposed to be Solomon's memo (but the website says the document is unavailable at this time).

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A 2-Fer on Equal Pay

Deborah Eisenberg (Maryland) has just posted on SSRN two articles dealing with equal pay issues. The abstracts are posted after the break; the articles are:

• Money, Sex, and Sunshine:  A Market Based Approach to Pay Discrimination, 43 Ariz. St. L.J. 951 (2012).
• Lessons from Wal-Mart Stores v. Dukes About the Legal Quest for Equal Pay, 46 New England L. Rev. (forthcoming 2012).

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Continue reading "A 2-Fer on Equal Pay"

Part 2 of Feuer on Tax Qualification of Pension Plan Trusts

Following last week's Part 1, Albert Feuer has posted Part 2 of his new Tax Management Weekly Report article, "Scriveners’ Errors, Drafting Errors, Operational Failures, Retroactive Amendments, Reformations, ERISA, and the Tax Qualification of Pension Plan Trusts."  According to the abstract:

Part II focuses on how the courts do and should resolve assertions that benefit entitlements are not determined by the “unambiguous” terms of an ERISA plan’s governing documents other than equitable estoppel claims, which make benefit-like claims based on misbehavior of plan representatives. Such assertions by plan fiduciaries to reduce benefits that accrued under the terms of the plan’s governing documents are often described as a request to apply the “scrivener’s doctrine.” If the court accepts such application, the acceptance raises operational failure issues because prior to the court decision, the plan presumably failed to follow the superseded terms of the governing documents. 

The Revenue Procedure presenting the EPCRS should remind plan sponsors and administrators that the Service lacks the authority to equitably reform pension plans to reduce accrued plan benefits. Court approval is required for such reductions, and it is questionable whether such approval should ever be available. Plan sponsors lack authority under ERISA to seek equitable reformations. ERISA fiduciaries may only act for the exclusive purpose of providing benefits to participants and their beneficiaries pursuant to the terms of the plan governing documents. Thus, no one, who would desire such reformation, has the authority to seek such a reformation. Nevertheless, such approval has been granted by the Seventh Circuit and has been considered by other circuits without any discussion of this issue. 

Part II also summaries how the Service may use its resources more effectively to encourage employers to provide tax qualified plan benefits, and thereby have pension plans satisfy the ERISA requirements that are similar to tax-qualification ones. First, reduce the barriers for plan administrators and sponsors who wish to correct operational failures, such as by providing one-stop shopping to users of the Service’s compliance programs, presenting more pre-approved correction methods, encouraging retroactive correction amendments that do not diminish accrued benefits,and providing that such amendments will not cause pre-approved plans to be treated as individually designed, and reminding users that a court decision that a plan has violated the plan’s governing documents means that there was an operational failure, which may have not been fully corrected by the decision. Second, reduce the barriers for the Service to discover operational failures and monitor their correction, such as by requiring plan administrators and sponsors to disclose (1) operational failures pertaining to benefit payments, and (2) their use of self-correction methods.

 -JH 

AALS Section Officers

Following the recent AALS Annual Meeting, the two labor and employment related sections have a new set of officers.  The Section on Employment Discrimination has Sandra Sperino as Chair, Deb Widiss as Chair-Elect, Angela Onwuachi-Willig as the Secretary-Treasurer, and the following on the Executive Committee: Camille Gear Rich, Robin Lenhardt, Sophia Lee, and Kerri Stone.  The Section on Labor Relations and Employment Law has yours truly as Chair, Peggie Smith as Chair-Elect, Rebeccas Lee as Secretary-Treasurer, and the following on the Executive Committee:  Ken Casebeer, Ken Dau-Schmidt, Michael Green, Monique Lillard, and Ann McGinley.

-JH

Kodak Bankruptcy Motivated by Retiree Benefits

Today's Wall Street Journal (subscription required) reports:

Here's one way of understanding Eastman Kodak Co.'s problems: The company has twice as many retirees drawing benefits in the U.S. as it has active employees world-wide.

Now, it hopes to scale back what it owes retirees during its stay in bankruptcy court. That leaves thousands of its former employees in danger of becoming the next group of Americans to see their promised retirements benefits—mainly health care—disappear.

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Cheverud on Tax Liability in Employment Awards

Eirik Cheverud (8th Cir. Staff Attny's Office) has just posted on SSRN his Note (NYLS L. Rev.) Increased Tax Liability Awards after Eshelman: A Call for Expanded Acceptance Beyond the Realm of Anti-Discrimination Statutes.  Here's the abstract:

When an employee suffers an unlawful adverse employment decision, her remedy generally lies in a backpay award. These awards are normally provided in one lump sum, which in turn is taxed as income in the year received. Often, the result is this: the employee would have paid less in taxes if no illegal action had occurred. This law review note details the historical background of this problem (an interesting romp of U.S. tax-policy history), and discusses how courts have begun to address it using increased tax liability awards (ITLAs) -- an additional monetary award increasing a plaintiff's backpay award, intended to offset the negative tax consequences of the backpay award's lump-sum distribution. It next weighs arguments made by courts that have rejected ITLAs, and demonstrates how the reasoning in Eshelman v. Agere Systems, a recent Third Circuit case announcing the availability of ITLAs under anti-discrimination statutes, effectively counters those courts' concerns. The note goes further to suggest that courts could, and should, provide ITLAs under most employment statutes (as opposed to being limited to the anti-discrimination context, which thus far has been the only area where courts, and even most scholars, have addressed ITLA applicability), including the Employee Retirement Income Security Act (ERISA), the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA).

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EEOC Seeks Input on Draft Strategic Plan

  The EEOC has issued a draft strategic plan that it seeks public comment on. From the news release:

Comments must be submitted by 5:00 pm ET on February 1, 2012 at strategic.plan@eeoc.gov or by mail to Office of the Chair, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507. This draft plan has not been approved by the Commission and is still under review.

The Strategic Plan serves as a framework for the Commission in achieving its mission by focusing on strategic law enforcement, education, and outreach, and efficiently serving the public. The EEOC has served as the nation’s lead enforcer of employment antidiscrimination laws and chief promoter of equal employment opportunity (EEO) since 1965. Every four fiscal years, Congress requires Executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The EEOC is currently operating under the Strategic Plan for Fiscal Years 2007 - 2012, as modified in July 2008. 

The process for developing this plan has been highly inclusive and collaborative. The plan was created by work groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities conducted within the agency. We are now continuing this inclusive effort by soliciting comments from our public partners, including advocacy groups and individuals. Your input is vital to our efforts to ensure accountability to our nation’s workers, employers, and taxpayers in general.

For general inquiries about the plan, please email strategic.plan@eeoc.gov or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or newsroom@eeoc.gov. If you are private citizen seeking EEOC information, please call (202) 663-4900 or e-mailinfo@eeoc.gov. Further information about the EEOC is available on its web site at www.eeoc.gov.

And from the plan itself, a description of its purpose:

The United States Equal Employment Opportunity Commission (“the EEOC”) is pleased to release its Fiscal Years 2012-2016 Strategic Plan (“the Strategic Plan”).  Since 1965, the EEOC has served as the nation’s lead enforcer of employment antidiscrimination laws and chief promoter of equal employment opportunity (EEO). The Strategic Plan establishes a framework for achieving the EEOC’s mission “to stop and remedy unlawful employment discrimination,” so that the nation might soon realize the Commission's vision of “justice and equality in the workplace.” 

MM

Penn State Sympoisum: Arbitration After Concepcion

Penn State Law will host a symposium February 22, 2012 on U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.  The Symposium, sponsored by the Penn State University Yearbook on Arbitration and Mediation, features an agenda with four panels speakers who will cover:

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• The Impact of AT&T Mobility on Federalism Interests.
• The Consequences of AT&T Mobility on Procedure in Multi-Party Litigation.
• Procedural Fairness After AT&T Mobility.
• The Likely Legacy of AT&T Mobility.

Here's a description of the symposium:

The 2011 Supreme Court decision in AT&T Mobility vs. Concepcion last year has potentially changed the legal landscape in a number of areas including class actions and arbitration agreements between consumers and businesses. Renowned U.S. Legal Scholars will convene for the U.S. Arbitration Law in the Wake of AT&T Mobility vs. Concepcion.

Speakers include: John D. Feerick, Arthur W. Rovine, Richard Bales, Richard Reuben, Chris Drahozal, Jill Gross,  Hiro Aragaki, Steve Bennett, Sandra Partridge, Terry F. Moritz, & Michael Helfand.

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Underfunding Unemployment

We know that public and private pensions are feeling a world of underfunded hurt right now.  So are state unemployment compensation funds, according to the report Unemployment Insurance and the Great Recession (December 2011) of the Urban Institute by Wayne Vroman:

This issue brief examines the unprecedented funding problem of state unemployment insurance (UI) programs. The majority of UI programs (36 of 53) have borrowed, securing record loan amounts to maintain unemployment insurance benefit payments during 2009-2011. It identifies the causes of the funding problem, discusses borrowing options for states and describes policy responses at both the state and federal levels. State actions have included both tax increases and benefit reductions. Federal policy proposals have addressed the low UI taxable wage base in most states and have offered partial debt forgiveness in return for state actions to improve solvency. To date, policy actions have been slow at both the state and federal levels of government.

Hat tip: Carol Furnish.

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UNLV Symposium: Democracy & the Workplace

The UNLV Saltman Center for Conflict Resolution will host a symposium February 23-25, 2012 on Democracy and the Workplace.  Here's the weblink; here's the list of stellar panels and speakers; and here's the symposium description:

Collective bargaining has become an issue in the United States, riots have roiled Britain, and the Arab spring continues to change politics in many ways. Protests by people who work and who are out of work are becoming more common. To explore the connection between having a voice at work and a voice in democracy, the Saltman Center will host a symposium at the William S. Boyd School of Law at the University of Nevada, Las Vegas from Thursday, Feb. 23 to Saturday, Feb. 25. Leading scholars and practitioners in labor and employment law, human resource management, dispute resolution, dialogue and deliberation, and democracy will speak on the topic.

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