Workplace Prof Blog

The European Pension Strikes

Here is a story from Reuters showing that the pension crisis is global in magnitude, and not just a US problem:

French trade unions said 2.5 million people took to the streets Tuesday to protest over pension reforms that President Nicolas Sarkozy says he is determined to implement on the way to elections in 2012.

Tapping into mounting unease over austerity as Europe emerges deeply indebted from recession, French union leaders demanded the center-right government heed their call to backtrack or run the risk of an escalation.

"If they don't respond and they don't pay heed, there'll be a follow-up and nothing is ruled out at this stage," Bernard Thibault, leader of the large CGT union, told a Paris rally.

Millions of commuters across the British capital also struggled to get to work as a 24-hour strike by workers on London's underground rail system crippled much of the network, hurting the city's convalescent economy.

Will American workers, union and non-unionized, take to the streets when they are unable to afford retirement in the coming years?

PS

The Eleventh Circuit and the Word "Boy"

As most readers know, Ash v. Tyson is the case in which the Supreme Court reverse the Eleventh Circuit and held that "boy" could actually have racial overtones even if not modified by "black" or "white," and that a plaintiff can present evidence that he or she had superior qualifications to another person who was chosen for a job the plaintiff applied for, even if the evidence didn't "jump of the page and slap you in the face."  Despite this reversal and two juries finding for the plaintiffs, the Eleventh Circuit has again held that no reasonable jury could find that "boy" indicated racial discrimination.  This saga has begun to attract a fair amount of attention--again--particularly among those who have lived in the South and other areas where the term "boy" is unfortunately well know as a racial slur. 

Stephen Bright (Southern Poverty Law Center and currently a visitor at my school, Tennessee) was quoted in the New York Times on this case and has written a short piece on the Eleventh Circuit and the word "boy."  It's well worth the read (click here for it: Download Bright Article).

-JH

Duong on T7 Extraterritoriality

Wendy Duong (Denver) has just posted on SSRN her article Extraterritorial Effect of U.S. Anti-Discrimination in Employment Law: Reexamining the Goals and Policies Behind the Citizenship Nexus.  Here's an excerpt from the abstract:

The weak enforcement of the ILO makes its body of international labor law merely an inspiration. Thus labor protection largely remains border- and culture-bound, unless stipulated by treaty. For example, an alleged sexual harasser under American law is subject to Title VII civil liability, whereas in France, such harasser can be jailed, if found guilty.

... [Currently, under U.S. law], the action of a non-U.S. employer can be subject to Title VII, but non-U.S. employees are not protected by Title VII. This creates an anomaly: a U.S. citizen working overseas for a foreign company is protected under Title VII, if the foreign company is controlled by a U.S. entity, but his or her non-U.S. co-worker sitting in the adjoining cubicle, working for the same company, is not so protected. Yet, the statutory language and legislative intent of Title VII’s Aramco amendment are clear – the citizenship nexus must be satisfied both in the employer as well as the employee for Title VII to apply to the employment relationship.

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Happy Labor Day!

Watching the Reds beating the Cards on national television Saturday (lost the season series, but still 7 games up!), I was struck by something I haven't seen on national television in a long while -- this nonpolitical AFL-CIO Labor Day 2010 TV spot.  The AFL-CIO's facebook page explains:

Check out our TV ad running this Labor Day weekend celebrating working people who are the backbone of our nation and the power of working together for a stronger America. The ad will run during several major sports broadcasts.

I have to wonder, though, about the wisdom of running the ad only during sports broadcasts.  That seems targeted toward a male audience (is it running on the U.S. Open?), but women are outpacing men on the job front in many respects, particularly during the current recession.

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The Bump

Employment law has long seen various cases involving questions of horseplay, especially with regard to workers compensation liability (e.g., Cardozo's opinion in Leonbruno).  Iowa's Supreme Court recently issued a decision in a horseplay case that will be good fodder for my class, at least.  From Courthouse News:

A water district employee who said "hello" to a co-worker by shaking his butt might be entitled to workers' compensation benefits after the co-worker accidentally hit him with a truck trying to return the unusual greeting, the Iowa Supreme Court ruled.

Norman Vegors and Casey Byrd worked for the Xenia Rural Water District, and they sometimes acknowledged each other in odd ways, such as by waving the boom of a track hoe at each other. One day, Vegors' hands were full, so he wiggled his butt at Byrd to say hello. Byrd tried to respond by tapping Vegors with his truck's mirror, but he accidentally hit Vegors with the truck bed instead.

Xenia contested Vegors' workers' compensation claim on the grounds that Vegors had been engaging in horseplay. The trial court agreed with Xenia and reversed Vegors' award. But the state Supreme Court overturned the decision and sent the case back to the workers' compensation board for a determination of whether Vegors' butt-shaking had been in the course of his employment.

"The character of Vegors' action of shaking his rear end -- and not the serious injury resulting from being hit with a truck -- must be analyzed to determine whether it is a deviation sufficient to bar recovery," Justice Michael Streit wrote.

Hat Tip:  Paula Schaefer

-JH

August Unemployment Numbers

The Department of Labor has released its August employment numbers and things seem to be somewhat mixed.  The unemployment rate moved up slightly to 9.6%, from 9.5%.  Overall, there was a loss of 54,000 jobs, but that was driven mainly by a loss of government (especially Census) jobs.  In contrast, there was an increase of 67,000 jobs in the private sector.  To help decipher these numbers, I'm going to quote part of a summary of the data done for an undergrad econ class by my favorite labor economist:

The bottom line is that there was little change, but slightly better than expected.  Based on the establishment level data, employment declined modestly [unemployment numbers can come from either household or establishment data; the household (CPS) data catches trends more quickly than the establishment data, but is also far more variable because of smaller sample size].   If one measured employment changes off the household survey (the CPS) rather than the larger establishment survey, the news was a bit more encouraging (an increase in employment of 290 thousand, but also an increase in the number of unemployed by 261 thousand, as more people moved into the labor force).  The CPS also showed a decrease in the number of long-term unemployed.  In short, there appears to be movement in the right direction, but at a rate far too slow to make up for the several million jobs lost during the recession.

-JH

Recently Published Scholarship

• William R. Corbett, Babbling About Employment Discrimination Law: Does the Master Builder Understand the Blueprint for the Great Tower?, 12 U. Pa. J. Bus. L. 683 (2010).
• Ronald Turner, Annual Survey of Texas Law: Employment Law, 63 SMU L. Rev. 537 (2010).
• Justin A. Hinton, In Vitro Fertilization and the Pregnancy Discrimination Act of 1978: How Far Can the Courts Expand the Coverage of the PDA to Protect Reproductive Technology?, 32 UALR L. Rev. 515 (2010).
• Molly D. Edwards, The Conceivable Future of Pregnancy Discrimination Claims: Pregnancy Not Required, 4 Charleston L. Rev. 743 (2010).
• Todd Cole, The Ministerial Exception: Resolving the Conflict Between Title VII and the First Amendment, 4 Charleston L. Rev. 703 (2010).

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Recently Published Scholarship: BJELL

Berkeley Journal of Employment and Labor Law
Volume 31, Number 1, Winter 2010

Articles

• Brishen Rogers, Toward Third-Party Liability for Wage Theft, p. 1.
• Roger C. Hartley, Freedom Not to Listen: A Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings, p. 65.
• Elizabeth J. Kennedy, The Invisible Corner: Expanding Workplace Rights for Female Day Laborers, p. 126.
• Vanessa R. Waldref, The Alien Tort Statute After Sosa: A Viable Tool in the Campaign to End Child Labor?, p. 160.

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Protection for Union "Shame On" Banners

In another case officially issued on Member Schaumber's last day on the NLRB, the Board has protected  union banners that were alleged to be unlawful secondary pressure.  In Eliason v. Knuth, at issue were some "Shame On" banners placed near employers who were using contractors with which the union had a dispute.  The question was whether the banners violated Section 8(b)(4)(ii)(B).  Or put another way, are the banners equivalent to picketing, which the Board has treated as unlawful threatening or coercive conduct?  The majority--looking to the text of 8(b)(4)(ii)(B), congressional intent, and the desire to avoid a First Amendment problem--said the peaceful and stationary banners were not threatening or coercive.  Members Schaumber and Hayes vigorously disagreed, arguing that the majority was giving unions too much power, such as the ability to engage in secondary boycotts using the exact same messages that would be unlawful if attached to a picket sign. 

Perhaps this is a sign that the rat will be back!

Hat Tip:  Justin Keith & Patrick Kavanagh

-JH

SALT Asks AALS to Honor SF Hilton Boycott

The Society of American Law Teachers (SALT) sent a letter yesterday to Susan Prager, executive director of the Association of American Law Schools, asking AALS to consider other options for its annual meeting scheduled in San Francisco this January.

Here is a snippet:

The Society of American Law Teachers (SALT) calls on the Association of American Law Schools (AALS) to honor the boycott of Hotel Employee and Restaurant Employee (HERE) Local 2 at the Annual Meeting in San Francisco in January 2011. The main conference hotel, the Hilton San Francisco Union Square, along with other hotels in San Francisco, are under boycott by HERE; their multinational corporate parents remain intransigent on wage and health care benefit issues affecting some of the lowest paid workers in our economy. SALT makes this call to stand in solidarity with those who work at these hotels where the AALS is currently scheduled to meet. HERE has been trying to negotiate a fair contract for over a year while the multinational corporate employers continue to seek more from the workers in health care premiums and wage concessions, even while these chains outperform Wall Street expectations. Because hotel chains have great economic resources and are frequently owned by multi-national corporations, it is imperative that unionized workers in hotels rely upon sources of leverage beyond withholding their own labor in order to obtain fair agreements. Cooperation from organizations holding conventions is particularly significant to their efforts to obtain economic justice.

Of course, I have no idea what the response will be, though AALS did moves it meeting from San Francisco to Washington D.C. in past years because, in part, of labor concerns.  I look forward to learning what various sections within AALS will do in light of the current boycott.  In the past, some sections have moved their programs and members out of the impacted hotel and held their programs elsewhere.

PS

NY Enacts Domestic Workers' Bill of Rights

On Tuesday, New York Governor Paterson signed the Domestic Workers' bill of rights into law. The new statute provides for overtime pay protections, guarantees time off eventually with pay, and provides protections from sexual harassment. It also provides a cause of action for domestic workers to sue to enforce it. See this AP story and this NY Daily News Story for more details.

It's a great achievement, but there seem to be big obstacles to enforcement given the structure of the industry, the lack of centralization of employment, and the number of workers that are paid "off the books." We'll all have to stay tuned to see how things develop.

MM

Eleventh Circuit Rejects Coming to Rest Doctrine and Defines "Materials" for FLSA Cases

The Eleventh Circuit issued an important decision this week in six cases consolidated for appeal on the scope of enterprise coverage under the Fair Labor Standards Act in Polycarpe v. E & S Landscaping Serv., Inc. There was no dispute that the employers here were employers of the employees or that they failed to pay minimum wages or overtime for hours worked over forty for employees whose jobs would not be classified as exempt. Rather the dispute here was about whether the FLSA covers the employers as enterprises or the employees as individuals.

The FLSA covers employees engaged in interstate commerce or employees who are employed by an enterprise engaged in interstate commerce, in the production of goods for commerce, or who "handl[e], sell[], or otherwise work[] on goods or materials that have been moved in or produced for commerce." Here, the employers did not sell goods, but instead mostly sold services--installation of home fixtures or landscaping, for example. The district courts in Florida held that the employers weren't covered as enterprises because they sold services, not goods, and any goods that they used in providing those services were purchased in Florida, where they had "come to rest" within the state where they were bought--those goods had lost their interstate commerce character.

The court of appeals reversed. First, it held that the "coming to rest" doctrine was not consistent with the FLSA's language. The statute uses the past tense: it talks about goods or materials that have been moved in or produced for commerce. So the fact that they have gotten to the place where they will be sold to the consumer is irrelevant.

Then the court dealt with the question of when employees will have handled goods or materials that had been moved in interstate commerce. The employers here were not selling goods, although the installation employers did occasionally provide parts for the thing they were installing during the installation services. The court went into great detail to define goods and materials. A good, it concluded, was a product or a component piece of a product that was to be sold. Thus, those parts that were included as part of the installation constituted goods for purposes of the statutes. In a very thorough statutory analysis, the court then concluded that materials were different from goods and that the term meant tangible items used to create products or used to provide services. With those definitions, the court held that both the installation companies and the landscaping companies handled materials. The court remanded the cases for the district court to determine whether those materials (and the goods used by the installers) had been moved in interstate commerce.

If you are looking for a good case to explain some of the intricacies of commerce and the commerce clause's reach, or for a good case for the rules and method of statutory construction, you should take a look.

MM

Corporate Pension Deficits in the US Reach An Ominous Milestone

The very fine Global Pensions site has an article today featuring a study by Mercer on the current deficits being run by Fortune 1500 company pensions:

Pension plans of S&P1500 companies are shouldering deficits of a combined $506bn, the largest recorded deficit in their history, according to data by Mercer.

The deficit translates to a funded status of 71% at the end of August, down from 84% at the start of the year. The shortfall is more than twice the 2009 deficit of $247bn, Mercer said.

Funding levels were crippled by falling equity markets coupled with low bond yields. The S&P500 was down 5% in August and AA bond yields used to discount liabilities were 4.94% at the end of August. Yields were the lowest they've been in a decade, Mercer said. Rates for high quality corporate bond yields have been on a steady decline since at least June 30 when they were 6.79%.

Recent legislation passed by Congress will help with some funding and "smoothing" issues, but the underlying trends are not good and the next year will likely bring a whole new crop pension plan terminations, putting even more pressure on the Pension Benefit Guaranty Corporation (PBGC).

As pressure mounts on employers to terminate retirement income programs, I and others believe the case is becoming stronger for a mandatory, national pension program which may be based on employer contributions, an expansion of Social Security, or something in between.

PS

Flip-Flopping, Donning-and-Doffing, and Deference

Jeff posted Tuesday on the Obama NLRB, noting how shocked -- shocked! -- Member Schaumber is that the Obama Board is reversing Bush II Board precedent (which of course reversed Clinton Board precedent, which reversed Bush I / Reagan Board precedent...).  Michael Fox, over at Jottings by an Employer's Lawyer, notes that a similar drama is playing out over the Department of Labor's donning and doffing rules.  He quotes the Sixth Circuit opinion, released Tuesday, of Franklin v. Kellogg Co. (6th Cir. 8/31/10) in which the court gives little deference to agency flip-flops:

[A]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation.

The problem with this approach is that it gets us no closer to a consistent application of law.  It trades agency flip-flopping every 4-to-8 years for a fragmented approach in which federal agency law differs by federal judicial circuit.  Neither is good.

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Recently Published Scholarship: ABA JLEL

ABA Journal of Labor & Employment Law
Volume 25, Number 3 (Spring 2010)

Articles:

• Christopher Hexter, Wesley Kennedy, Alexia Kulwiec, Peter Janus, Todd Sarver, and Steven Wheeless, Twenty-five Years of Developments in the Law under the National Labor Relations Act, p. 299.
• Maurice Wexler, Charles C. Warner, Gary R. Siniscalco, John L. Quinn, and Adam T. Klein, The Law of Employment Discrimination from 1985 to 2010, p. 349.
• Theodore J. St. Antoine, ADR in Labor and Employment Law During the Past Quarter Century, p. 411.
• Paula G. Ardelean, Mitchell C. Baker, Brian D. Hall, Wynter Allen, Thomas F. Hurka, Alison T. Vance, and David J. Carr, The Development of Employment Rights and Responsibilities from 1985 to 2010, p. 449.
• Marley S. Weiss, International Labor and Employment Law: From Periphery to Core, p. 487.
• Tyler Wiese, Seeing Through the Smoke: 'Official Duties' in the Wake of Garcetti v. Ceballos, p. 509.

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More NLRB Muscle Flexing

This is round #2 of what will probably be several posts on notable NLRB decisions that are being officially issued as Member Schaumber's term expired.  Here's today's installment:

Int'l Assoc. of Machinists -- addressing whether union can require employees to make annual Beck right objections.  Board held in this case that the requirement was an unjustified and was a duty of fair representation/ 8(b)(1)(A) violation (with a dissent by Pearce on this finding).  Notably, this is not a per se rule; rather, unions can avoid a ULP by justifying such a requirement and showing that they minimized the burden on objecting employees.  Moreover, this rule will be prospective only.  Schaumber and Hayes wrote a concurrence/dissent stating that the NLRB doesn't give enough respect to Beck rights and disagreeing with the majority's finding that the rule was not discriminatory.

Hacienda Hotel -- addressing whether dues checkoff provisions are covered by Katz's unilateral change doctrine.  This one gets complicated.  In 2000, the Board found a 8(a)(5) violation based on the employer unilaterally eliminating dues checkoff after the CBA expired.  The Ninth Circuit vacated and remanded.  In 2007, the NLRB found that there was no ULP.  The Ninth Circuit then vacated and remanded again.  (Feeling like a yo-yo yet?)  The court said the focus is whether dues checkoff is permissive or mandatory in a right-to-work state (if the latter, it can't be changed unilaterally).  The result on remand?  Nothing.  Because Becker recused himself, there was a 2-2 deadlock.  Thus, the NLRB applied existing precedent (dues checkoff is permissive) and dismissed the complaint.  Without a doubt, this issue will be back and will go the other way.  At least until there's no longer an Obama Board.

Voluntary Recognition and Successor Bar Press Release -- here is the press release inviting amicus briefs on these two issues that we mentioned in yesterday's post.

Hat Tip:  Patrick Kavanagh

-JH

FLRA's Most Improved Award

As we've noted, the FLRA has had major morale issues for quite some time, although things started looking up recently.  Apparently the new efforts are working, as the FLRA was the most improved agency in the new best places to work in government rankings.   According to the Washington Post's report on the rankings:

Overwhelmingly, the driving factor in the agency's improved standing was the 418 percent surge in the score employees gave the agency's senior leadership. That's in keeping with the findings of the best places survey across government: "The 2010 survey for the fifth time in a row showed the primary driver in the federal space is effective leadership, and in particular, senior leadership." 

[Also] [i]t's impressive how often federal employees refer to their sense of mission when talking about their agencies. They want their service to count. In the case of the FLRA, statistics show tat the job is now getting done:

In fiscal 2009, the agency issued 215 decisions. That's nearly twice as many as from the two previous years combined. The pending case inventory has dropped more than 40 percent since February 2009, and the average waiting time of a pending case is down 35 percent. Staffing is up 10 percent from its lowest level of 118 in fiscal 2008, and the agency's budget is growing.

Hat Tip:  Barry Hirsch

-JH

The Obama NLRB Starts Flexing Its Muscles

Some of the last cases in which Member Schaumber took part in are now coming out, and there's some interesting ones.  Here are a few notables:

UGL-UNNICO -- granting review of election decision as means to reconsider successor bar doctrine (i.e., the Board is getting ready to reverse MV Transportation's rebuttable presumption of majority to support and go back to its St. Elizabeth's Manor rule, which had a approximately six-month bar).  The Board also invited briefs on the issue.  Check out Schaumber's scathing dissent, which indicates amnesia affecting his memory of September 2007 among other things.

Independence Residences -- the Board addressed the effect NY State's law against an employer using state funds to encourage or discourage union activity on an election.  Assuming that the state law is preempted, the majority concluded that it did not justify overturning the election.  This was based on the ability to use funds to oppose a union and--the most convincing to my mind--the fact that concluding otherwise would be grounds for invalidating all elections in NY (at least the ones that unions won) as long as the state law was in force.  Here's the Board's news release on the case.

Lamons Gasket -- requesting evidence of parties' experience with Dana Corp. (in which the Bush NLRB restricted the voluntary recognition bar).  The bulk of the opinion is Schaumber and Hayes' defense of Dana on the merits, and Liebman's response in seeking more info (although her opposition to Dana is no secret).

What I find particularly interesting is the degree to which that Schaumber in particular objects to even the potential of reversing Board precedent.  The flip-flopping is a well-known aspect of Board law and both sides have always screamed some about it when they're in the minority.  But in some cases, the Bush Board reversed several decades of unchanged Board law, so his objection to flipping cases only a few years old sounds especially hollow.

Hat Tip:  Patrick Kavanaugh

-JH

Aspiring Law Professors Conference at Arizona State Law

Zak Kramer (Arizona State) writes to tell us that Arizona State is once again hosting its Aspiring Law Professors Conference for fellows, VAPs, clerks, and other law professor hopefuls. 

Here are some detail from the conference flyer:

Designed for Visiting Assistant Professors, Fellows and Clerks who plan to go on the academic teaching market, but valuable to anyone considering a move to teaching.

• Learn to succeed in the entry-level law teaching market
• Obtain an insider’s perspective on the appointments process from faculty who’ve been there
• Conduct a mock interview or mock job talk and gain feedback from law professors

Speakers include: featured speaker Dan Filler (Drexel) and Brannon Denning (Samford), Carissa Hessick, and Teneille Brown.

PS

Coke Cancels Health Insurance of Striking Workers; Workers Bring ERISA Suit

About 500 Coca-Cola employees went on strike last Monday over charges of employee surveillance, intimidation, and bad faith bargaining. A day later, Coke responded by cutting off the strikers' health care coverage.  Coke's rationale, I assume, is that "benefits, like salary, are what you get for working, and if you're not working, we don't have to pay you."  The strikers, however, are calling foul:

"My wife had a kidney transplant two years ago. When Coke cancelled our health care, they cut off her anti-rejection medication.  This shows me that Coke doesn't care about its employees," said Bill Mauhl, a 34-year Coke employee, who works in the company's production facility in Bellevue.

Five of the strikers have filed a class-action ERISA suit against Coke.

Readers are invited to weigh in with comments.

Hat tip: Carol Furnish.  For more, see Law.com and the Teamsters press release.

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