November 11, 2005
Diversity in the Legal Workplace
An article by Morgan Morrison in this month’s Texas Bar Journal argues that law firms have a self-interest in promoting diversity. Morrison points out that in the last year, nearly 100 corporate legal officers have signed A Call to Action: Diversity in the Legal Profession, a document created by Sarah Lee General Counsel Roderick Palmore. Signatories to this document pledge
that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms. We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a meaningful interest in being diverse.
A recent survey, sponsored by the Houston-based law firm of Fulbright & Jaworski, of more than 350 in-house counsel at large companies revealed that 40% of the companies consider diversity important in selecting outside counsel, 30% report having discussed diversity with outside firms, and 16% have written diversity policies to which outside counsel must adhere.
For the full text of Morrison’s article, see Embracing Diversity: Your Business Depends on It.
November 10, 2005
DOL Issues Guidance Regarding the Effect of Natural Disasters or Inclement Weather on FLSA Salary Exemption
The Department of Labor yesterday released two Opinion Letters regarding the effect that an employer's response to natural disasters or inclement weather will have on the exempt status of the employer's employees.
Section 13(a)(1) of the FLSA provides a minimum wage and overtime pay exemption for executive, administrative, and professional employees. One test for the exemption requires that the employee be paid on a salary basis. An employee is considered "salaried" if s/he “regularly receives . . . a predetermined amount . . . [which] is not subject to reduction because of variations in the quality or quantity of the work performed.” Deductions may, however, be made when the employee is absent from work for one or more full days for personal reasons, other than sickness or accident. However, if an employee is “ready, willing and able to work, deductions may not be made for time when work is not available.”
In Opinion Letter FLSA 2005-41, an employer asked whether an employee's exempt statuts would be affected if, during inclement weather or natural disasters, the employer directed the employee to take vacation or leave without pay. The DOL answered that if the employer closes the office, the employer may require an employee to use vacation time, but once vacation time is exhausted, the employer must continue to pay the employee his/her regular salary. If the employer's office remains open but an employee fails to report to work for a full day or more (such as on a heavy snow day), the employee may be placed on leave without pay for the days s/he is not at work. However, if the employer's office remains open and an employee fails to report to work for less than a full day (i.e., arrives later due to heavy snow), the employer may not make any deduction to the employee's salary.
In Opinion Letter FLSA 2005-46, the DOL reiterated that "an employer that remains open for business during
adverse weather emergencies may make deductions, for full-day absences only,
from the pay of an otherwise exempt employee who chooses not to report for work
for the day(s) because of the adverse weather emergencies, and treat any such
full-day absence(s) as being for 'personal reasons' under the applicable
Other DOL Wage-&-Hour Opinion Letters released yesterday:
2005-42 (academic advisers and intervention specialists under Section 13(a)(1)).
2005-43 (aviation museum curator under Section 13(a)(1)).
2005-44 (carpet/furniture cleaning business and Section 7(i)).
2005-45 (staffing manager under Section 13(a)(1)).
November 9, 2005
Yesterday's Wall Street Journal contains an excellent article pointing out that employers requiring employees to speak only English can face discrimination suits. The EEOC has filed one such suit against Sephora USA, the division of LVMH Moet Hennessy Louis Vuitton. The WSJ article quotes EEOC attorney Raechel Adams as saying: "This is the type of double-standard we want to prevent. Hispanic employees are expected to speak Spanish with customers but at the same time are reprimanded for speaking Spanish in their free time." The EEOC reports a significant increase in charges of discrimination based on English-only rules. For the complete article, see Testing 'English Only' Rules.
Getman to Speak at Case Western
Julius Getman will speak on March 8, 2006, at Case Western Reserve University School of Law. His topic will be "The Decline of Unions: Is Labor Law to Blame." He will address such issues as whether the law has played a role in the decline of union membership and density, and whether the NLRA should be amended to aid unionization. A free, live webcast is available for the lecture. Professor Getman currently is writing a book with former Secretary of Labor Ray Marshall on the future of the labor union movement.
Hiatt to Speak at Georgetown
Jonathan Hiatt, General Counsel of the AFL-CIO, will speak next Wednesday at Georgetown University Law Center. His topic will be "Collective Rights in the Workplace Within a Culture of Individual Rights."
November 8, 2005
Supreme Court Unanimously Decides Two "Walking Time" Cases
The Supreme Court ruled this morning that employers must pay employees not only for the time employees spend donning "integral" protective gear, but also for the time they spend walking to production areas after donning such gear. The Court also ruled that employees need not be paid for time spent waiting in line to obtain protective gear when they first get to work. Justice Stevens wrote a unanimous opinion that consolidated two cases brought under the Portal-to-Portal Act amendments to the Fair Labor Standards Act. IBP, Inc. v. Alvarez, No. 03-1238 (2005).
The rulings are important because even small increments of time, when multiplied by many employees over many workdays, can add up to substantial sums of money. Employers now must pay employees for "any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity," and such "principal activities" include donning protective gear that is necessary for the job.
Secretary of Labor Elaine Chao, in a press release, has heralded the rulings as "a tremendous victory for low-wage workers across the country and the Department of Labor."
Cert Denied in Case of Stereotyped Transsexual Police Officer
The Supreme Court yesterday denied review of a case in which a male transsexual police officer recovered $874,236 for sex discrimination. The trial court and Sixth Circuit found that the City of Cincinnati had engaged in sex stereotyping under Price Waterhouse when the City, among other things, told the officer that he was "not masculine enough" for promotion to sergeant. The officer had dressed as a woman when he was off-duty and had sometimes come to work wearing makeup, nail polish, and arched eyebrows. The Sixth Circuit case is reported at Barnes v. City of Cincinnati, 401 F.3d 709 (2005).
I think it'll be interesting to see how Scalia (and Roberts and perhaps Alito) deal with this type of case when the Supremes finally accept certiorari. On the one hand, Scalia's conservative politics and view of morality make him an unlikely champion of LGBT workplace rights. On the other hand, a textual reading of the statute (see Scalia in Oncale) favors LGBT employees: if the police officer had been a woman and had acted "effeminately," he would have been promoted; because he was a man, he was not; he therefore was denied promotion "because of his sex."
I used a similar Sixth Circuit case, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), as the basis of a final exam question in my Exployment Discrimination class last spring.
Lambda Legal to Focus on Employment Issues
Lambda Legal runs a quarterly e-publication called "Of Counsel." This quarter's
"Of Counsel" will focus on employment law, and the topics that
will be covered include:
1. How to use contract law to protect against LGBT discrimination in states without sexual orientation protection.
2. Supreme Court Justice nominee Samuel Alito's employment ruling record.
3. A discussion on diversity in the corporate workplace.
4. An analysis of Lambda Legal's employment cases.
November 7, 2005
Brad Seligman, lead counsel in a recently-certified class action sex discrimination case against Wal-Mart, will speak about "Litigating Wal-Mart" this Wednesday at Santa Clara University School of Law.
Forthcoming Scholarship by Scott Moss
Courts' "Behavior" Problems: What Behavioral Economics Says Employment Discrimination Doctrine Is Getting Wrong (and What That Says about the Prospects for a Presciptive Behavioral Economics) (work in progress (especially the title), expected early 2006) (abstract).
Against "Academic Deference": Keeping Title VII Alive to Redress Academic Discrimination, __ Berkeley J. Emp. & Lab. L. __ (forthcoming early 2006).
Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will, 67 U. Pittsburgh L. Rev. ___ (forthcoming early 2006, vol. 67, no. 2).
The Fair Labor Standards Act (book chapter being added, as of October 2005, to the 3-volume Lexis/Bender treatise, Employee Rights Litigation: Pleading & Practice.
November 6, 2005
Top-5 SSRN Labor/Employment Downloads
1. Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.
2. Michael S. Knoll, Restricted Stock and the Section 83(b) Election: A Joint Tax Perspective.
3. Michael Selmi, Sex Discrimination in the Ninethies, Seventies Style: Case Studies in the Preservation of Male Workplace Norms.
4. Orly Lobel, The Four Pillars of Work Law.
5. Scott A. Moss, Where's There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will