January 7, 2005
Changes in the Workforce and Ergnomics
Occupational Health & Safety Online reports that:
Your organization will be changing in 2005 and over the next 10 years, as well. More specifically, you will see changes in: 1) the composition of your workforce, 2) the type of work they do, and 3) where they do it. These changes may require your organization to modify its programs and processes in new ways to improve your employees' working environment and health. However, if implemented and managed appropriately, new processes and programs can help reduce your worker's compensation costs and improve employee productivity.
The article suggests that to address these fundamental changes and to mitigate their resulting ergonomic implications, companies should follow these steps:
1. Develop a solid understanding of the current risk profile of your employee population.
2. Determine the risk factors driving injuries in your company, including the different types of service and office workers, remote workers, and older workers.
3. Implement proactive ergonomic programs that reduce these risk factors among these populations.
4. Continuously measure and monitor your risk profile against your benchmark risk profile to keep up with new risks due to changes in demographics, workload, operations, and locations.
The Three Changing Faces of the U.S. Workforce (by Kim Lopez)
January 6, 2005
Organizing Latino Workers
The Washington Post reports on attempts by the Ironworkers to reach Latino workers in the construction industry. According to the article:
"In an earlier era, union leaders might have resented the Latino arrivals and lobbied for tighter immigration laws. But these days, many unions across the country view immigrant workers as a source of new membership, and so Local 5 has mounted a campaign to recruit them.
Soon the union will hire a full-time Spanish-speaking organizer, officials said. For now, U.S.-born organizers such as Coles and Calvin -- neither of whom speaks Spanish -- troll the region's construction sites bearing welcoming smiles and translation cards.
The goal is to get the worker interested enough to give his home address or phone number. Then Coles or Calvin swings by a few evenings later with one of the union's Spanish-speaking members for a more extended talk."
Where the Action Is - Union Organizers Wooing Latino Workers (by N.C. Aizenman)
Report on Employment Practices in the Retail Industry
The EEOC recently issued High End Department Stores,Their Access to and Use of Diverse Labor Markets: Technical Report.
The report focuses
"on retail department stores, the largest employer of all retail subsectors except for food and beverage stores. It is also a major employer of women who make up a large portion (75 percent) of the retail salespersons in these stores. There is a wide range of stores within the broad category of department stores. The most exclusive high end department stores are considered as offering superior employment situations in terms of environment, compensation and benefits. This study seeks to determine how people of color fare in these stores. Two key questions surround these stores. Do high end department stores focus so much on locations in affluent neighborhoods that they limit access that nonwhite workers might have to employment there? Second, regardless of accessibility to diverse work forces, do high end department stores maintain a diverse work force? Department stores in the ten largest metropolitan areas are examined: New York, Los Angeles, Chicago, Philadelphia, Dallas, Miami, Washington, Houston, Detroit and Boston."
Some of the report major findings include:
* The labor market for African American and Hispanic sales workers relevant to high end department stores is not significantly different than the labor markets for other types of department stores.
* The labor market for Asians sales workers is somewhat better for high end department stores than for other types of department stores.
* On average, high end department stores are more likely to have significantly shortfalls in the employment of African Americans, Hispanics and Asians as sales workers.
* Chain ownership has a significant effect on diversity of employment.
* There appears to be some evidence that exclusive department stores have substantially more disparities with Hispanic sales workers than other kinds of race/ethnic groups.
January 5, 2005
More on effects of Hoffman Plastics
Earlier this week I blogged (here) about a couple of recent New York cases in which the Appellate Division, First Department found that the Supreme Court's rationale in Hoffman Plastics (2002) precluded undocumented alien plaintiffs to recover lost earning damages in personal injury actions.
In that context, I noted that a student note in the Cincinnati Law Review, Christine Smith, Give us Your Tired, Your Poor: Hoffman and the Future of Immigrants' Workplace Rights, 72 U. Cin L. Rev. 363 (2003), raised the possibility that courts could extent Hoffman's rationale to other type of employment litigation cases.
Reed Podell (Smith & Laquercia, LLP), counsel for the appellant in Balbuena and trial counsel to the third party defendant in Sanango, had published an even earlier article, Hoffman Plastics Compounds v. NLRB: Have Undocumented Aliens Lost The Right to Recover Unearned Lost Wages as Damages in Personal Injury Actions?, 32 NYSBA Torts, Insurance and Compensation Law Section Journal 45 (2003), which precisely anticipated the appellate court's findings in the two recent New York cases.
Thanks to Mr. Podell for the tip.
Discrimination lawsuit against Ford settled
According to the Cincinnati Enquirer:
"Ford Motor Co. has agreed to pay more than $9 million, offer apprenticeships to 279 African-Americans and drop its apprenticeship admissions test to settle two federal lawsuits alleging that the automaker discriminated against black employees who wanted to boost their careers by learning skilled trades.
The proposed remedies would settle lawsuits filed last week by the U.S. Equal Employment Opportunity Commission and 11 current and former employees of Ford's plant in Sharonville, which has about 1,500 hourly employees. It will fall to Senior U.S. District Judge S. Arthur Spiegel to approve the settlement.
Specifically, the deal calls for:
• Elimination of the Apprentice Training Selection System test, a pencil-and-paper exam that the 11 plaintiffs contend is discriminatory, and the development of a new selection method by a jointly chosen industrial psychologist.
• Payments of $30,000 to each of the 11 plaintiffs and two others who filed complaints to the EEOC.
• Payments of $2,400 to each of the 3,400 class members who file valid claims on time.
• Ford's selection of three of the 13 complainants and 276 of the 3,400 class members for spots on Ford apprenticeship eligibility lists.
• Payment of $1.1 million in legal fees and court costs to Mehri, Jones and three other, out-of-state, law firms involved in the case; and $567,000 for the lawyers' work in carrying out and monitoring the settlement."
Changes in Immigration Rules
Kathy Gurchiek (SHRM OnLine) reports on the new DOL regulations regarding the issuing of Permanent Foreign Labor Certifications (PERMs). According to Gurchiek, the regulations, which are to take place beginning in March 2005:
"will require employers to demonstrate that there are no willing and qualified Americans available for hire before filing applications with the government to use aliens for permanent employment in the United States.
The new regulation affects employer requests to the Permanent Foreign Labor Certification (PERM) program. PERM helps employers hire foreign workers to meet their workforce needs when no willing and qualified U.S. workers are available.
Under the new regulations, employers must conduct job recruitment in the United States before filing PERM applications, first placing a job order and two Sunday newspaper advertisements for an opening. Employers may file PERM applications electronically, using web-based forms, or by mail.
The regulation requires employers looking to fill professional positions to conduct three additional recruitment steps from a list published in the new rules."
The new regulations are available here.
January 4, 2005
Blogs and the Workplace
Watch out - don't be "dooced" for "blogging."! What???
The BBC News reports on what happens when bloggs enter the workplace:
... "increasingly people are landing in hot water with employers over blogs about their work.
A new term has emerged as a result. According to UrbanDictionary.com, to be "dooced" means "losing your job for something you wrote in your online blog, journal, website, etc.""
The article reports on the various legal and business issues that are sprouting in workplaces as employees enter the bloggsphere in increasing numbers:
"With some ... there are issues over terms of employment and codes of conduct which can become incredibly difficult to interpret, he explains.
"We have already seen a number of rulings in industrial tribunals where the mere 'misuse' of the net in the absence of a clear policy is not grounds for dismissal," he says.
"Even where you have employee codes of conduct, they are not particularly clear about blogs."
There are broader human rights issues for governments, as well as copyright pitfalls where bloggers use company equipment and time meaning the company effectively owns blog content.
What is clear is that employee blogs, like instant messaging, have largely remained under the corporate radar so far."
Looming pitfalls of work blogs (by Jo Twist)
Discrimination lawsuit by Muslim-american
The Chicago Tribune reports on a discrimination lawsuit filed by a Muslim-American from harassment he suffered following the Sept. 11, 2001 terrorists attacks. According to the article:
"The suit by Syed Abbas, a native of Pakistan, said one co-worker at AFI Industries Inc. repeatedly called him a terrorist while a supervisor drew laughter at the factory when he made a crude drawing of Abbas and labeled it a "wanted" poster.
In a telephone interview, Abbas, a naturalized U.S. citizen who lives in Carol Stream, said he was so alarmed when one supervisor told him he was under government surveillance that he sold his house at a loss and moved his family in with relatives.
The same supervisor had warned Abbas that someone would break into Abbas' house and shoot him, the suit said.
"They took advantage of him because they knew they could play on his fears," said Kamran Memon, one of Abbas' attorneys. "They picked a guy who they knew was vulnerable.""
The article also notes that:
"The number of cases alleging workplace discrimination based on religion has increased significantly since the Sept. 11 attacks, according to the federal Equal Employment Opportunity Commission.
In the three years after Sept. 11, the number of discrimination charges by Muslims or those perceived to be Muslim nearly doubled to 1,778, compared with 892 in the three years before the terrorist attacks, the EEOC said."
January 3, 2005
NLRB Recent Developments
Steve Greenhouse (New York Times) writes on Sunday's edition about the developments at the Republican controlled NLRB. In Labor Board's Critics See a Bias Against Workers, Greenhouse notes that:
"The rulings of the National Labor Relations Board have poured out one after another in recent months, with many decisions tilting in favor of employers.
The Republican-dominated board has made it more difficult for temporary workers to unionize and for unions to obtain financial information from companies during contract talks. It has ruled that graduate students working as teaching assistants do not have the right to unionize at private universities, and it has given companies greater flexibility to use a powerful antiunion weapon - locking out workers - in labor disputes."
Thanks to Suja Thomas for the tip.
Two recent cases New York cases involving illegal immigrants illustrate the effects of the U.S. Supreme Court's rationale in Hoffman Plastics.
In Sanago v. 200 E.16th St. Hous. Corp., the Appellate Division, First Department, considered whether:
"in light of the federal Immigration Reform and Control Act of 1986 (IRCA) (8 USC § 1324a et seq., as added by Pub L 99-603, 100 Stat 3359, as amended) and the recent decision of the United States Supreme Court in Hoffman Plastic Compounds v NLRB (535 US 137 ), plaintiff's status as an undocumented alien bars or limits his recovery for lost earnings."
The court held that:
"the clear implication of Hoffman is that a remedy based on the wages plaintiff might have earned unlawfully in the United States "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA" (535 US at 151). Thus, we conclude that the motion by 200 East and Tower to exclude plaintiff's evidence on the issue of lost earnings should have been granted to the extent of limiting the evidence admissible on that issue to proof of the wages that, but for his injuries, plaintiff would have been able to earn in his country of origin. Accordingly, we vacate the award for lost earnings, and remand for a new trial, consistent with this opinion, solely on that issue."
Simillarly, in Balbuena v. IDR. Realty Inc. the same court held,
"that plaintiff, as an admitted undocumented alien, is not entitled to recover lost earnings damages based on the wages he might have earned illegally in the United States. Rather than simply dismiss the lost earnings claim, however, we limit plaintiff's recovery for lost earnings to the wages he would have been able to earn in his home country, since an award based on a prevailing foreign wage would not offend any federal policy."
For a recent law review note perhaps foretelling this type of decisions see, Christine Smith, Give us Your Tired, Your Poor: hoffman and the Future of Immigrants' Workplace Rights, 72 U. Cin L. Rev. 363 (2003)