December 17, 2005
DOL Issues USERRA Regulations
The U.S. Department of Labor announced regulations interpreting the law that protects employment and reemployment rights and benefits of service members upon their return to civilian life. This is the first time since the law's passage in 1994 that the DOL has developed regulations to explain and clarify the Uniformed Services Employment and Reemployment Act (USERRA). The DOL's action is the latest in a series of proactive steps taken to ensure job security for the largest group of mobilized National Guard and Reserve service members since World War II. USERRA prohibits discrimination against past and present members of the uniformed services and establishes reemployment rights for service members who want to return to the jobs they held prior to service.
For more information, see
What Happens When You Get Sick at Work?
The thesis of the story is that how your sickness is treated by your employer depends to a large extent on the culture of the workplace and the sensitivity of your employer. Of the two employees highlighted in the story, "One was told, 'We'll give you whatever you need.' The other recalls facing much more ambivalence, with one administrator telling her, 'We all have problems, just do the job.'"
Although there are a number of laws which potentially apply to your employment when you get sick, including federal, state, and employer-provided long and short-term disability plans, the Family Medical Leave Act, workers' compensation (if you're injured at work in the scope of your duties), and even the Americans with Disabilities Act (through accommodations and modifications of your work and work schedule), the interesting point is that culture and employer sensitivity may be even more important.
The New York Times sums it up this way:
In this way, their stories reflect the realities of being ill in today's workplace, at a time when sick workers have more legal safeguards than ever before, and yet also face gaps, inconsistencies and question marks in those laws. Yes, how an employee is treated after crossing the stark line from worker to patient is broadly defined by legislation. But it is more specifically determined by things like the culture of a workplace and the sensitivity of a boss.
Agree? All thoughts and comments welcome.
New Labor and Employment Scholarship
Angela Onwuachi-Willig (Cal-Davis)and Mario L. Barnes (MIami) (both pictured left), By Any Other Name?: On Being 'Regarded As' Black, and Why Title VII Should Apply Even if Lakisha and Jamal Are White, 2005 Wisc. L. Rev. (forthcoming).
From the abstract:
Part I examines the ways in which race is socially constructed and analyzes several studies to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market for those perceived as belonging to certain racial groups. Part II analyzes the current framework under Title VII for evaluating individual disparate treatment cases based on race and describes how federal courts have failed to recognize the way in which race is socially constructed. Part III then borrows from a framework used in proving disability discrimination to argue for the inclusion of race discrimination claims where one is, for example, "regarded as" black, with all of its "collective negative imaging," to redress discrimination in the workplace. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.
You can access the abstract here and the download the paper. A must read!
December 16, 2005
Grocery Chain Indicted for Alleged Labor Fraud
A federal grand jury indicted Kroger Co.'s Ralphs Grocery subsidiary [yesterday] on charges it illegally rehired striking workers and let them work under false names and Social Security numbers during a 2003-2004 labor dispute.
Kroger said the U.S. Attorney's Office notified it of the indictment and that it "strongly disputes" the charge that illegal hiring of striking workers was sanctioned by the company.
According to the indictment, Ralphs engaged in illegal conduct during its lockout of about 19,000 grocery clerks and meat cutters employed at its Southern California stores between Oct. 12, 2003 to March 1, 2004.
"The indictment alleges that Ralphs required rehired locked-out employees to work under false identities to hide its illegal activities from labor unions, the Internal Revenue Service, the Social Security Administration and the National Labor Relations Board," the U.S. Attorney's Office for the Central District of California said in a statement.
For more on this story, see Ralphs Indicted for Alleged Labor Fraud.
Hat Tip: Daniel J. Hall
Harvard Business School to Slackers: The Ban Has Ended on Sharing Grades With Employers
You know, you would think that people (and employers) would understand that it is hard enough to get into the Harvard Business School (HBS). Is it really necessary to actually make these elite students go through the motions of earning good grade once they achieve the heights of one the best business schools in the country?
According to HBS, the answer is now yes. And despite strong student opposition, the days of the ban on sharing grades with potential employers is coming to an end. According to Inside Higher Ed, "Starting with new students who enroll in the fall, M.B.A. candidates can decide for themselves whether to share their transcripts."
Lest this sound somehwat strange to the uninitiated, the theory goes that the business school curriculum is generally collaborative in nature and emphasis on grades causes unnecessary competition among the students. Be that as it may, Jay O. Light, Acting Dean of HBS, stated:
"Fundamentally, I believe it is inappropriate for HBS to dictate to students what they can and cannot say about their grades during the recruiting process. I believe you and your classmates earn your grades and should be accountable for them, as you will be accountable for your performance in the organizations you will lead in the future."
Light added that banning the release of grades was “inconsistent” with the business school’s commitment “to maintaining high academic standards.”
Slackers of Harvard, Beware!
Selective Strike Called For Monday By NYC Transit Workers
According to the AP, a midnight deadline has come and passed without an all out strike being called by the NYC Transit Union. Such a strike of 33,000 workers could have affected nearly 7 million New Yorkers who rely upon subway and bus service for getting around the Big Apple.
Instead, the Union has sought additional bargaining leverage against the Transportation Authority by announcing plans for "a limited strike against two private bus lines in Queens that are being taken over by the City,
but are not yet covered by the law prohibiting walkouts by public
employees. The two private lines have about 50,000 riders and 750 workers."
As far as how far apart the parties are from reaching an agreement, the
union last night rejected the Transit Authority's last, best offer of a 9
percent wage increase over three years. The union has been asking for an 8
percent a year wage increase for three years, along with favorable pension rules and additional health benefits. For more details on this developing story, see NYC Transit Union Calls Selective Strike. PS
As far as how far apart the parties are from reaching an agreement, the union last night rejected the Transit Authority's last, best offer of a 9 percent wage increase over three years. The union has been asking for an 8 percent a year wage increase for three years, along with favorable pension rules and additional health benefits.
For more details on this developing story, see NYC Transit Union Calls Selective Strike.Update on Saturday,December 17 in New York Times here.
Air India to Cabin Crew: Lose Weight or Lose Your Job
According to The Guardian of England, Air India has put out an ultimatum for its rotund cabin crew: either you lose wieght or you can start looking for a new job. Pilots and flight attendants have been given two months to shape up or ship out.
Why might you ask has Air India put such stringent weight restrictions on over 1600 of its cabin crew employees? Is it because heavy pilots and flight attendants cause more fuel to be expended to keep the plane in the air? No. Is it because they are worried about the increase health insurance costs for overweight employees (as I discussed in a post on obesity regulation a few weeks back)? No.
It's because they want to alter perceptions that their cabin crews are tired and inefficient. And also because, as an airline spokesperson put it: "Imagine if crew members can't fasten their seat belts, how can they fly?"
FedEx Negligent Hiring and Supervision Case and Proximate Cause
We're back on-line just in time to discuss a disturbing story posted today over on Overlawyered.
According to a story reported by Bloomberg News, FedEx Kinko's hired one Paul Sykes, who turned out to have a criminal record as a convicted sex offender. FedEx claims, howvever, that their background check of Sykes did not turn up any criminal information.
While working for FedEx, Sykes solicited FedEx customers for his side computer repair business, eerily enough called, "Facts and Fantasy." Sykes has now been arrested and charged with allegedly molesting the eight-year old son of one of his computer repair clients (Sykes has pled not guilty).
The child's family is now suing FedEx for negligent hiring and supervision. "We're completely horrified by the alleged incident caused or done by our former employee," said Sandra Munoz, a spokeswoman for Memphis, Tenn.-based FedEx. "However, we do disagree with the allegations charged against the company in this lawsuit."
What's interesting about the case is that the employee was not performing work for FedEx itself when he engaged in the alleged criminal conduct, but while working for a client of his own computer business whom he apparently only met in the first place because of his employment with FedEx.
For some reason, Palsgraf, explosions, and proximate cause keep popping into my head.
December 15, 2005
House Passes Pension Bill
The House sought to reassure millions of baby boomers worried about retirement benefits, passing legislation on Thursday that supporters said would revitalize employer-based pension plans.
The legislation, backed by an array of corporate groups and unions, passed 294-132. Ahead are negotiations, probably early next year, with the Senate, which last month passed a similar version.
Rep. Charles Rangel of New York, top Democrat on the House Ways and Means Committee, said the measure tightens rules on companies with pension liabilities "without simultaneously eliminating loopholes that would allow these companies to easily dispose of their pension obligations in bankruptcy."
The [House] bill would:
-require companies, over a seven-year period, to meet a 100 percent funding target.
-establish a new interest rate measure by which companies can more accurately calculate their liabilities.
-stipulate that plans that are less than 80-percent funded cannot use credit balances to avoid minimum required contributions.
-bar the funding of executive compensation plans when worker pension plans are severely underfunded.
-raise from $19 to $30 per participant the annual premium that companies pay the financially faltering agency.
-try to clarify the law concerning cash-balance plans, under which employers set aside money each year for an employee with a guarantee that it will grow at a specific rate. Such plans have been challenged in court by labor groups charging they discriminate against older workers.
The History of Cooperation Between Unions and Environmentalists
Historically, environmentalists and union members worked together to pass such landmark protections as the Occupational Safety and Health Act and the Clean Air Act.
More recently, the United Steelworkers and the Service Employees International Union worked with the Sierra Club to protect the Arctic National Wildlife Refuge. We find common cause with unions such as Unite Here to address the dangers posed by chemicals used in the industrial laundry business, and the United Farm Workers to defend workers and communities against the misuse of pesticides.
Similarly, the International Brotherhood of Electrical Workers is championing new investments in solar power and other renewable energy technologies, and many building and trade unions are leading the charge locally for responsible development centered on public transportation hubs and other smart-growth solutions for communities.
Those important efforts, however, are being compromised by a growing injustice against America's workers. According to a study commissioned by American Rights at Work, a labor advocacy organization, when workers tried to organize, 30 percent of employers surveyed fired pro-union workers, 51 percent coerced employees into opposing unions with bribes or special favors, and 49 percent threatened to close a workplace if employees tried to form a union.
Constraining the ability of workers to unite and bargain for better working conditions has far-reaching consequences for our air, water and the places we call home. Unions often serve as the front line of defense against hazardous pollution, chemical spills and other accidents that can devastate communities. They are the first ones to spot and report the dangers that begin, but rarely end, in the workplace. Strip unions of their power to safeguard workers and you strip them of their power to protect all of us.
Read the rest of the story here.
Hat Tip: ACSBlog
Malin and Slater on NYC Transit Strike
In a previous post, I discussed the preliminary injunction a judge entered against a potential NYC Transit Strike. I though this unusual so I contacted two of my favorite public employment law experts and here's what they had to say about such an anticipatory labor injunction:
Joe Slater (Toledo):
I wouldn’t say they are unusual. I can’t speak to the specific case of TWU Local 100 and NYC today.
There are reported cases in which unions threaten to strike and employers ask for injunctions before the strike. See, e.g., the Idaho Supreme Court’s decision in School District No. 351, Oneida County v. Oneida Education Ass’n. (Idaho 1977), a featured case in the fine Grodin, Weisberger, Malin casebook.
In general, state laws in the past decade or two have trended toward making it somewhat easier for public employers to get injunctions against illegal strikes. For example, fewer state courts now allow the union argument that an employer who has not bargained in good faith has “unclean hands” and thus cannot ask for equitable relief.
Of course the political and practical questions often outweigh the legal rules in this area, as they frequently do in public sector labor law generally.
Marty Malin (Chicago-Kent) had this to say:
New York’s Taylor Law has some of the harshest anti-strike provisions of any public sector labor relations statute. The Taylor Law provides for injunctions, such as this one, a union’s loss of its dues check-off, and provides that striking employees are fined two days’ pay for every day on strike and the fine is collected by the employer. This is in marked contrast to the law in Illinois, where strikes by all public employees except police and firefighters are legal. The contract must have expired, there must have been resort to mediation and a five day notice of intent to strike must have been given. Then, the union is free to walk at any time and the strike may only be enjoined if it poses a clear and present danger to public health and safety. (In 21 years under the statutes you can still count the number of clear and present danger strike injunctions that have been issued on the fingers of one hand.)
If you’ll allow me to plug my study from the 1990s, see Marty Malin, Public Employees Right to Strike: Law and Experience, 26 U. Mich. J. L. Reform 313 (1993).
Thanks for the insights guys!
New Sexual Harassment Decision from 5th Circuit
The Fifth Circuit Court of Appeals a couple days ago in the case of Harvill v. Westward Communications, LLC (5th Cir. 12/13/05) reaffirmed that the burden for a plaintiff in a hostile work environment sexual harassment case under Title VII is that the abusive conduct in question must be "severe or pervasive," not "severe and pervasive."
As the Court noted, "Contrary to being an irrelevant distinction, as [employer's] counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on plaintiff than required by law."
Interestingly, even though the plaintiff prevailed on this point, summary judgment was affirmed for the employer defendant on all other issues, proving that the severe or pervasive standard is still not an easy one for plaintiffs to meet in and of itself.
Hat Tip: Miriam Cherry
NLRB Announces Pilot ADR Program for Settling ULP Cases Pending Before Board
The National Labor Relations Board has created a pilot alternative dispute resolution program to assist the parties in settling unfair labor practices cases pending before the Board on exceptions to decisions issued by the Agency’s administrative law judges. The pilot ADR program will run for a 2-year period.
Participation in the program is voluntary, and a party who enters into settlement discussions under the program may withdraw its participation at any time. The Board will provide the parties with an experienced neutral, usually an NLRB administrative law judge, to facilitate confidential settlement discussions to explore resolution options that serve the parties’ interests. Where feasible the settlement conferences will be held in person, but some conferences may be held telephonically. The Board will stay further processing of the unfair labor practice case for 60 days from the first meeting with the neutral or until the parties reach a settlement, whichever occurs first. Extensions of the stay beyond the 60 days may be granted by the neutral only with the agreement of all parties.
The Board established this pilot ADR program in response to the success experienced by other federal agencies and the federal courts in settling contested cases through ADR, as well as the success of the NLRB’s own settlement judge program at the trial level. For more information, see the NLRB Press Release or contact Program Director Gary Shinners at email@example.com.
AFL-CIO Announces Opposition to Alito
The AFL-CIO yesterday announced its opposition to the nomination of Judge Samuel Alito to the United States Supreme Court and released a review of his record on worker rights cases outlining "the grave threat to working families posed by his confirmation." As a member of the U.S. Court of Appeals for the Third Circuit, according to a letter from AFL-CIO President John Sweeney to the full Senate, Judge Alito handed down decisions and offered dissents that reveal “a disturbing tendency to take an extremely narrow and restrictive view of laws that protect workers’ rights, resulting in workers being deprived” of many vital protections relating to health and safety, wage and hour, anti-discrimination and pensions.
December 14, 2005
Ban on Public Library Employees Wearing Religious Jewerly Unconstitutional
The Logan County Public Library in Kentucky . . . [a]t first, ,just banned its employees from wearing "clothing depicting religious, political, or potentially offensive decoration." This might be permissible, I think, because it doesn't single out religious advocacy for worse treatment than other ideological advocacy (so there's no unconstitutional discrimination against religion) and because it restricts a form of speech that may well prove disruptive of the library's function: Such T-shirts tend to be somewhat in-your-face, and are not unlikely to alienate quite a few patrons precisely because of the prominence of the message. I'm not positive that the rule is constitutional (though a neutral rule that required more professional dress likely would be), but at least there's a decent case for it.
But then the library changed the policy to prohibit religious ornaments as well, and applied it to bar an employee from wearing a cross on her necklace. (Obviously the same policy would also ban stars of David and other religious symbols.) The library's justification? "[T]he policy is necessary to protect librarian impartiality on issues that could be the subject of patron inquiry," and "the policy is required to avoid the appearance of religious favoritism and to avoid violating the state's duties under the Establishment Clause."
[T]hough the line between T-shirts and jewelry is one of degree, symbolic jewelry tends to be much less obtrusive, and also much more commonplace and therefore familiar even in quite professional circles . . . The government acting as employer must have some authority to control on-the-job expression by its employees; yes, the answer might well be different for T-shirts and for jewelry, for pins saying "F[---] You" and for cross necklaces. But that there is some such necessary authority doesn't mean that the government should have absolute authority to suppress all religious self-expression by its employees merely based on entirely speculative fears.
The case is Draper v. Logan County Public Library, 2005 WL 3358686 (W.D. Ky. Aug. 29).
More Labor and Employment Scholarship
All Westlaw and Lexis links require subscription:
Scholarship of Note
Matthew T. Bodie (Hofstra) & Rebecca E. Hollander-Blumoff (NYU)(both picutred left), The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act, 90 Iowa L. Rev. 1361-1404(2005).
From the Abstract:
The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself.
Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system.
Download it while it's hot!
AFL-CIO: "Who's On Our Side?"
An interesting story was posted yesterday on The Fix Blog (which can be found on washingtonpost.com). The story explains that the AFL-CIO is launching a campaign aimed at bringing grassroots pressure on 10 Republicans in statewide races. The "Who's on Your Side" Program will be formally launched in early 2006, with field organizers, coordinating with head of state parties, issuing "report cards" on labor voting records for a number of members of Congress.
The AFL-CIO's emphasis on increasing labor's power through such political campaigning to a large extent led to its split five months ago with Andy Stern's "Change to Win Coalition". Stern wishes to focus on grassroots organizing rather than political campaigning as a better way to rejuvenate the labor movement. It will be interesting to see whether the AFL-CIO's new strategy helps produce Democratic victories in the targeted political races.
Injunction Issued Against NYC Transit Strike
A state Supreme Court judge issued a preliminary injunction today, barring New York City's transportation worker's union from striking for the first time in 25 years if they fail to reach a new contract by Thursday night's deadline.
The city is bracing for a walkout in the nation's largest mass transit system, which carries about seven million passengers on an average weekday. The city's contingency plans for the strike include starting public schools two hours late, closing portions of Fifth and Madison Avenues to all but emergency vehicles, and requiring cars in much of Manhattan to carry at least four passengers.
Negotiations are scheduled to resume this evening. The injunction, sought by the New York State attorney general's office, is allowed under the state's Taylor Law, which prohibits strikes by public employees. If transit employees do walk out, the Transport Workers Union, Local 100, faces millions of dollars in fines - and individual employees could be fined two days' pay for each day of work they miss. Striking workers could also be jailed.
The city has estimated that in the event of a strike, $440 million to $660 million worth of business would be lost each day.
December 13, 2005
Supreme Court to Decide Employment RICO Case
Ross Runkel, over at Ross' Employment Law Blog, brings news that the United States Supreme Court granted cert. yesterday and will hear an interesting case concerning the intersection of employment law and RICO.
In Mohawk Industries v. Williams (decision below: Williams v. Mohawk Industries (11th Cir, 06/9/2005), the question presented is: if an employer conspires with a recruiter to employ and harbor illegal workers, does that violate RICO?
Williams and other hourly employees alleged that the employer's widespread and knowing employment and harboring of illegal workers allowed the employer to depress wages for its legal hourly employees and to discourage workers compensation claims - all in violation of the federal RICO statute. The trial court denied the employer's motion to dismiss; the 11th Circuit affirmed; the US Supreme Court granted certiorari to review the 11th Circuit decision.
Read all about this fascinating case here.