Saturday, November 19, 2005
LSU will host a conference on Privacy in the Workplace on February 9-10, 2006. Featured speakers will include:
- Anita Bernstein
- Charlie Craver
- Matthew Finkin
- Catherine Fisk
- Rafael Gely
- Pauline Kim
- Mike Selmi
- Steven Willborn
Friday, November 18, 2005
Yesterday, the Seventh Circuit issued an opinion authored by Judge Frank Easterbrook in the employment discrimination case of Dunn v. Washington County Hospital. Dunn, a hospital nurse, alleged that a doctor harassed and discriminated against her. The district court ruled for the hospital. Even if workplace conditions were discriminatory, the district court said, the hospital could not be liable since the doctor was an independent contractor with staff privileges and not an employee. Since he was not an employee, the hospital could not control his conduct.
The Seventh Circuit reversed. Judge Easterbrook wrote that it was irrelevant that the doctor was an independent contractor, since under Faragher and Ellerth, all that mattered was whether the employer had used its arsenal of incentives and sanctions (including discharge) to change the doctor’s conduct. Judge Easterbrook explained:
[I]n this respect independent contractors are no different from employees. Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing ... It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.
Thanks to Paul Secunda for calling my attention to this case.
Thursday, November 17, 2005
The Department of Labor's Bureau of Labor Statistics released today a 2004 Report demonstrating the incidence rates, by industry, of nonfatal workplace injuries and illnesses. The overall rate of injury and illness declined from 5.0 per 100 workers in 2003 to 4.8 in 2004. Industries with the most-reported injuries and illnesses included hog and pig farming (16.9), ferrous metal foundries (16.3), manufactured home manufacturing, (15.4), truss manufacturing (14.3), and animal (except poultry) slaughtering (13.3).
The EEOC yesterday voted 3-1 to approve final proposed revisions to the Employer Information Report, also known as the EEO-1 Report, which would be effective for the 2007 reporting cycle. The EEO-1 Report is the reporting form by which most employers provide the federal government with a count of their workforces by ethnicity, race and gender, divided into job categories. The final proposed changes to the EEO-1 Report's race and ethnic categories include:
- Adding a new category titled "Two or more races not Hispanic or Latino";
- Separating "Asians" from "Pacific Islanders";
- Adding a new category titled "Asians not Hispanic or Latino";
- Adding a new category titled "Native Hawaiian or Other Pacific Islander not Hispanic or Latino";
- Extending the EEO-1 data collection by race and ethnicity to the State of Hawaii; and
- Strongly endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.
A notice concerning the proposed revisions will be sent shortly to the Federal Register. Links:
- Proposed EEO-1 Report, Section D (containing the proposed revisions);
- EEOC Notice to Federal Register;
- EEOC press release regarding EEO-1 proposed revisions.
Wednesday, November 16, 2005
Delta Airlines will argue today at a hearing that a federal bankruptcy judge in New York should abrogate the airline's collective bargaining agreement with ALPA. If the parties don't settle, a ruling will be due in 30 days.
The Department of Labor issued yesterday its FY 2005 Annual Performance and Accountability Report. The Report is downloadable in pdf format.
Tuesday, November 15, 2005
The Yale Workers' Rights Project, the Yale Work and Welfare Group, Yale Law Women, and the Yale American Constitution Society are sponsoring a preview screening of Robert Greenwald's new documentary, Wal-Mart: The High Cost of Low Prices, at Yale Law School on Tuesday, November 15, from 7:00 - 10:00 p.m. Professor Jim Silk will moderate a discussion following the movie. This event follows a standing-room only panel discussion of Wal-Mart's activities held on April 27, 2005 at Yale Law School. That panel included Professor Vicki Schultz of Yale Law School, Professor Michael Wishnie from NYU Law School, Brad Seligman, Executive Director of the Impact Fund, Terry Collingsworth, Executive Director of the International Labor Fund, and Ben Sachs, Assistant General Counsel of the Service Employees' International Union. For more information, contact Vicki Schultz at email@example.com.
Katherine Van Wezel Stone's book, From Widgets to Digits: Employment Regulation for the Changing Workplace (Cambridge University Press, 2004) won the 2005 Michael Harrington Book Award from the American Political Science Association for the "outstanding book that demonstrates how scholarship can be used in the struggle for a better world." The prize was awarded at the APSA Annual meeting in Washington, D.C. in September 2005. The book also was a Finalist for the 2005 C. Wright Mills Book Award from the American Sociological Association.
From Widgits to Digits is about the changing nature of the employment relationship and its implications for labor and employment law. For most of the twentieth century, employers fostered long-term employment relationships through the use of implicit promises of job security, well-defined hierarchical job ladders, and longevity-based wage and benefit schemes. Today’s employers no longer value longevity or seek to encourage long-term attachment between the employee and the firm. Instead employers seek flexibility in their employment relationships. As a result, employees now operate as free agents in a boundaryless workplace, in which they move across departmental lines within firms, and across firm borders, throughout their working lives. Today’s challenge is to find a means to provide workers with continuity in wages, on-going training opportunities, sustainable and transferable skills, unambiguous ownership of their human capital, portable benefits, and an infrastructure of support structures to enable them to weather career transitions.
On November 16, the University of Toledo College of Law will host Gerald McEntee. McEntee is the International President of the 1.4 million-member American Federation of State, County, and Municipal Employees. The speech will be open to the public, at the College of Law, at noon. For information, contact Professor Joseph Slater at (419) 530-2008.
Monday, November 14, 2005
Today's Wall Street Journal contains a special section on workplace diversity. A series of well-written articles presents workplace diversity as a "business imperative" and describes the ways that companies can respond.
The New Diversity, by Carol Hymowitz, points out that "[i]f companies are going to sell products and services globally, they will need a rich mix of employees with varied perspectives and experiences. They will need top executives who understand different countries and cultures. They will need executives around the world who intuitively understand the markets they are trying to penetrate."
Back to Class, by Laura Egodigwe, describes modern trends in diversity training. Today's training, she says, focuses on religious differences, globalization, 'microinequities' (small slights and unconscious behaviors that can add up to exclusion), work-life balance, expansion of age/generational issues (baby boomers, gen X and gen Y), and spirituality."
Moving Ahead ... But Slowly, by Joi Preciphs, profiles how racial minorities are faring in corporate America. She examines the percentage of managerial and professional jobs held by African-Americans, whites, Hispanics, Asian/Pacific Islanders, and Native Americans. The percentage held by minorities is increasing, but slowly, and except for Asian/Pacific Islanders, is nowhere near their percentage of the total workforce.
Beyond the Numbers, by Amy Chozick, interviews R. Roosevelt Thomas Jr., who argues that the real challenge for employers isn't just hiring -- it's making the most of a varied workforce.
A Helping Hand, by Melanie Trottman, describes the obligations many successful minorites feel to mentor junior minority colleagues -- and the challenges the mentors face in doing so.
A Special Effort discusses the ways that Starbucks has attempted to reach out to persons with disabilities, both as customers and as employees.
Then and Now, by Steven Gray, examines the ways that opportunities have changed for minority and female business school graduates from 1980 and 2005.
Delayed Recognition describes how Arab-Americans have begun to advance their rights as a minority since 9/11.
Dig In, by Jim Carlton, explains that Google has diversified the menu selections at its company cafeteria as a way of catering to its many immigrant employees.
Jill Yung, Big Brother IS Watching: How Employee Monitoring in 2004 Brought Orwell's 1984 to Life and What the Law Should Do About It [the article examines GPS minitoring of mobile employees], 36 Seton Hall L. Rev. 163 (2005).
Sunday, November 13, 2005
1. Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.
2. Orly Lobel, The Four Pillars of Work Law.
3. Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.
4. Charles A. O'Reilly & Brian G. M. Main, Setting the CEO's Pay: Economic & Psychological Perspectives.
5. Allison Christians, Social Security in the United States Treaties and Executive Agreements.