December 31, 2005
Hmm . . . This Sounds Familiar
London Underground said some Tube services were running on New Year's Eve as staff strike action began, threatening travel chaos for revellers.
The RMT Union said staff would not start shifts after noon and the network would run down, stopping by evening.
Workers walked out for 24 hours at noon in a row over rotas, after talks failed between the RMT union and Tube bosses.
It comes as millions of revellers prepare to welcome in the New Year in towns and cities across the UK.
As the action began, a LU spokesman said all lines were running at present, but they were unsure what would happen.
So is that also all the MTA and TWU really had: "a row"? And what the heck are "rotas"?
GM Prevails in Religious Discrimination Suit
The US Court of Appeals for the Seventh Circuit . . . [this past] Thursday upheld the dismissal . . . of a suit alleging religious discrimination against General Motors (GM). The case is Moranski v. General Motors, 2005 WL 3549219 (7th Cir. Dec. 29, 2005).
Writing for the court, Judge Ann Claire Williams supported the decision to dismiss the lawsuit because the corporation's Affinity Group . . . diversity program treated all religions equally by prohibiting the promotion of any religion. The suit, brought by Indianapolis GM plant worker John Moranski, alleged that the program discriminated against religion since it did not permit the formation of an interdenominational Christian group. Although the program allows groups of people with disabilities, gays and lesbians, women and veterans, and people of Hispanic, African or Asian ancestry, it prohibits groups with any religious affiliation. AP has more.
The case, brought under the religious discrimination provisions of Title VII, illustrates that a company may choose to treat religious groups different from other types of employee groups, as long as all religious groups are treated the same. The 7th Circuit stated in this regard: "Here, the allegations in Moranski’s complaint make clear that General Motors would have taken the same action had he possessed a different religious position." Indeed, as the court explained further: "The Guidelines preclude recognition of Affinity Groups based on any religious 'position, including
agnosticism, atheism, and secular humanism.'"
Although such reasoning would probably not fly under the religion clauses of the First Amendment and established Supreme Court precedent in this area, there was no state action in this case and thus, the First Amendment was not implicated (see footnote 3 of the opinion: "We note that General Motors is not a federal or state actor. Under the First Amendment to the United States Constitution, a
government body may not be able to open a forum for private speech and exclude from that forum speech regarding the entire subject matter of religion. See, e.g., Grossbaum v. Indianapolis-
Marion County Bldg. Auth., 63 F.3d 581, 592 (7th Cir. 1995).").
Update on the Employment Status of Article III Groupie
Ann Althouse is reporting that David Lat (formerly known as Article Three Groupie (A3G) at the now-defunct Underneath Their Robes blog) has voluntarily quit his job with the U.S. Attorney's office in Newark, New Jersey. The article is here.
You might remember that I blogged on this story in November (previous post here), and discussed the intersection of blogging and employment law, including the rights of public employees to speak on matters of public concern on the Internet under the First Amendment.
According to the article, David was not forced from his job because of his blogging activities, but instead quit on his own accord. An US Attorney spokesman stated: ""It was David's decision to leave . . . There was no effort to force him out of the office at all. He was very good at what he did here."
I have to say that I remain highly skeptical of this explanation, mainly because David was forced to shut down his blog and I can't imagine his credibility as an AUSA having survived the dramatic outing of his gossipy alter-ego.
David plans now to move to Washington D.C. to start a yet-to-be-mentioned new career. I wish him well and good luck in whatever the future may bring him.
College Boycotts of Coke Products Based on Labor Issues
Gordon Smith over at the Conglomerate blog reports that an increasing number of universities are boycotting Coke products. The list of colleges now includes Rutgers, NYU, and Michigan and there are now 10 colleges that have joined the ban according to the New York Times.
According to the Times article:
The university [of Michigan], which has 50,000 students on three campuses, on Thursday became the 10th college to stop selling Coca-Cola products because of concerns arising from accusations about the company's treatment of workers in bottling plants in Colombia and environmental problems in India.
Labor activists have said that Coca-Cola, through its Latin American bottlers, has been complicit in the deaths of eight union leaders and in continued harassment of unionized employees.
Coke has denied all of the accusations [here is the official statement]. In April, the company announced the findings of a report by CSCC, a consulting firm in Los Angeles. The report, which was paid for by Coke, addressed current conditions, not the deaths, which occurred from 1989 to 2002. It found no violations or abuses of labor or human rights in Coke's bottling plants in Colombia.
Regardless of how this scenario plays out, it is great to see universities taking an active stand on labor and human rights issues. Perhaps, this additional pressure on Coke will cause it to reconsider its current business actions in the international arena.
December 30, 2005
In Case Anyone Is Still Paying Attention . . .
Does anyone have any sense if this strike has had any impact on Northwest Airlines at all. I fly NW a lot (being nearest to the Memphis hub) and have not noticed any major delays or problems. Anyone seen or heard anything else?
Also, there is still a chance that the bankruptcy court may discharge NW's obligations under the current collective bargaining contract.
A bleak situation for the NW mechanics, indeed.
FedEx Drivers Not Independent Contractors Under California Employment Law
Christine Hurt over at the Conglomerate blog has the details:
Law.com today reports that this month a California trial judge has ruled that FedEx can no longer categorize its drivers as independent contractors under California employment law. This ruling directly affects 14,000 FedEx drivers, but it could affect many, many more drivers in the package delivery and courier industries. The article did not report whether FedEx had categorized the drivers as independent contractors for federal income tax purposes or whether this ruling would have any affect on that categorization. The cost of that change would be quite large in terms of social security payments, withholding, etc.
Of course, who is and who is not an independent contractor depends greatly on the test being applied. For instance, whereas the Fair Labor Standards Act (dealing with minimum wages and overtime) utilizes the fairly lenient "economic realities test," the IRS uses a 20 plus factor test to determine independent contractor status.
In short, being an independent contractor under one law does not guarantee you will be found to be an independent contractor under another law or the common law for that matter.
Recent Scholarship of Note
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Pataki May Veto Pension Part of NYC Settlement Agreement
According to the New York Times this morning, the labor deal between the MTA and TWU in the NYC Transit strike may face a significant obstacle in the shape of the Governor's veto pen. From the article:
Gov. George E. Pataki's office said last night that he was inclined to veto a key provision of the New York City transit contract settlement announced this week - one that gives 20,000 workers refunds of pension contributions - noting that he had vetoed a similar provision twice before.
The provision, which would require a change in state law, would give many workers refunds of payments they made to their pension plan between 1994 and 2001, when most workers contributed 5.3 percent of their earnings. In 2001, the contribution for most workers was reduced to 2 percent.
The provision, part of the settlement reached on Tuesday by the Metropolitan Transportation Authority and Local 100 of the Transport Workers Union, delighted many transit workers, particularly those who joined the system in 1994 or earlier. It is expected to strengthen support for the contract among the union's 33,700 members, who will vote on the deal by next month.
The refund provision has drawn scrutiny on editorial pages. Yesterday, The Wall Street Journal argued that the authority "caved on pension reform"; The Daily News asserted that the union and its president, Roger Toussaint, "made out like bandits"; and The New York Post argued that the cost of the refunds was "far too high" and the provision "difficult to fathom."
If Mr. Pataki were to veto the refund provision, the result could be continued fighting over the contract, which was modeled on a proposal by state mediators who intervened after the strike began on Dec. 20.
The settlement calls for union members to pay 1.5 percent of their pretax wages toward health insurance premiums. In exchange, the authority agreed to the refund provision and abandoned its efforts to make pensions for future workers less generous. The contract calls for annual raises averaging 3.5 percent over three years.
Clearly, if this part of the settlement deal is vetoed and the rest of the agreement stays the same, this makes it even more difficult for anyone to say that TWU Local 100 won anything by its strike. And if the governor vetos the pension provisions (which I would argue shouldn't even be part of a written agreement under the Taylor Law), it will be interesting to see if the rest of the settlement falls apart. Then, of course, no one wins.
Revisiting College Tenure Requirements
I start today by putting on my education law hat (of course, in the area of the employment rights of junior college faculty).
Inside Higher Ed is reporting that the Modern Language Association (MLA) is considering proposals that would not require junior faculty to publish a monograph in order to be tenured.
According to the blurb:
[A special] panel [of the MLA] wants departments — including those at top research universities — to explicitly change their expectations such that there are “multiple pathways” to demonstrating research excellence, ending the expectation of publishing a monograph. But the panel does not appear likely to stop there.
It plans to propose that departments negotiate “memorandums of understanding” with new hires about what factors will go into their tenure reviews. It wants departments to end a bias that favors print over online publications. It wants to change the rules of how tenure candidates are evaluated, proposing that a limit of six be set on the number of outsider reviewers asked to look at a tenure candidate and that those outside reviewers no longer be asked certain questions that seem likely to doom some candidacies while adding little valuable information to an evaluation.
In all, this could be the beginning of a larger movement to change the rules of university tenure for all faculty. One could ask: if it becomes easier to attain tenure under the new guidelines, should professors have the same tenure job security protections as the current system provides?
To me, tenure still forms the backbone of a robust academic culture at any institution. As recent debates about academic bias have proven, university professors are not just normal employees discussing issues with others. They need the full breadth of their academic freedoms to contribute to a robust exchange of ideas on campus in order to provide the best learning environment for all students.
December 29, 2005
Did the TWU Win the NYC Transit Strike?
So says Matt Stoller at the MyDD blog. He argues that even though Local 100 workers have to pay additional health care costs, they did not have to increase their pension contributions, and will receive additional reimbursements for the overfunding of the pension. He also points out that the union stayed together and "kept the leverage of being able to strike."
I'm not convinced (and I'm sure my union attorney friends will claim that this is my management attorney background coming out again), but let's look at all the facts. Yes, the TWU workers did receive wage increases of 3%, 4%, and 3.5% over the next three years, but that is far less than the 8% a year they were demanding, and shrinks even further when one considers the increased 1.5% in payments union members will have to pay for health care. I'm not even sure the net gains in compensation will even keep up with inflation from year to year. Also, the eventual compensation increases agreed to were very similar to the MTA's last best offer before the union went on strike.
Second, Matt says that they preserved the leverage of being able to strike. But, of course, there is no right to strike under the Taylor law for most public employees in New York. Indeed, the TWU was found in contempt of a court's injunction, and unless such fines and payroll deductions were forgiven as part of the strike settlement (someone fill me in on this in the comments if they know), this illegal strike cost the union a lot. Plus, the leaders of the union appeared to have been an afternoon away from being thrown into prison on criminal contempt charges. How all this preserves the right to strike for public employees in New York is beyond me.
On the pension issues, and as I have blogged previously, these were issues that should not even have been subjects of bargaining under what are considered "terms and conditions" under the Taylor Law. Rather than seeing a win for either side on the pension issue, I see a stalemate, which appears to be the proper resolution at this point.
The fact that pension reimbursements were apparently made is really besides the point since such reimbursements would most likely would have occurred anyway under the public employment retirement system laws.
Finally, although there are polls out there saying the public (or certain parts of the public) supported the union, my readings of the main stream media and most blogs leads me to the conclusion that the TWU strike was a tactical mistake, a union overreaction, and a public relations nightmare. Remember, even the national TWU union refused to support Local 100's strike.
As always, I would be interested to here readers' thoughts and whether you agree with me, Matt, are somewhere in between, or not even close to either of us.
Workplace Violence Rears Its Ugly Head Again
From the Detriot Free Press:
Authorities could only speculate that 22-year-old Jamal Samuels was deeply troubled -- reportedly mentally ill -- when he shot his mother, his niece and a coworker before turning the gun on himself in another coworker's driveway.
After he fled his mother's home in her champagne-colored 2003 GMC Envoy, police said he drove to the UPS plant in Livonia, where he waited for a coworker. Samuels had shown up for work at 6:30 p.m. Tuesday but was sent home within an hour with other part-timers who weren't needed.
Kelton (Lamarr) Kidd II, who police said was a work buddy of Samuels, ended his 2:30 a.m. shift late, clocking out about 3 a.m. Kidd's family said he had phoned his girlfriend to say he was on his way home.
He never arrived.
Instead, Samuels ambushed him, police said, shooting Kidd multiple times in the Wal-Mart parking lot where he had parked his vehicle.
A coworker in the same parking lot said he heard the gunshots about 3:10 a.m. He saw a body on the ground and said he watched as Samuels fired three or four shots. Samuels turned Kidd's body over and kicked him, said the coworker, who asked not to be identified because he was new on the job.
There's no indication that UPS had any idea this part-time employee was mentally ill, had these violent
tendencies, or that he would carry out these violence acts at work.
Should employers be required to conduct mental health testing of all prospective employees and would such testing make any difference in any event? Probably not.
The whole thing is just senseless.
If Retirement Security is Not An Employer's Problem, Then Whose Is It?
[O]f the more than 100 large, U.S. and European multinational organizations Hewitt selected for its Global Retirement Benefits Research Survey, only a paltry 4% said that enabling employees to retire is a top priority. For most companies, particularly those in North America, adequate planning for retirement benefits appeared to be a low priority, and less than half of the corporations surveyed ranked themselves “in control” of the measures required for proper retirement planning, which include aligning retirement costs with business strategies, managing those costs and associated risks, optimizing processes, enabling employees to participate in the programs companies offer and executing a global retirement strategy.
Now, as I understand it, there are three primary sources for retirement income: personal savings, social security, and employer-provided retirement plan. We know already know that Americans are abysmal when it comes to personal savings (see this recent post) and living on social security alone would lead most elderly to be close to the poverty line. And so, if employers are not taking a more active role in securing their employee's retirement, who's left? It appears individuals themselves. Nevertheless,
[i]f any progress is to be made in terms of companies equipping themselves better for their future retirees, then individuals and plan sponsors need to work in tandem. The onus of successful retirement planning has shifted onto the individual, but it is up to plan sponsors to communicate with people, provide them with the know-how on how to take advantage of the programs offered by their employers.
Amen to that.
December 28, 2005
United States-Japan Agreement on Social Security Credits
U.S. workers temporarily assigned to Japan for duties and Japanese workers temporarily sent to the United States will benefit from an agreement by the two countries’ governments to end double payments and allow the computation of social security credits in both countries.
The United States already has similar agreements with Australia, Canada, Chile, South Korea and nearly every country in Western Europe, while Japan has similar agreements with Germany, Britain and South Korea. In addition, Japan has reached agreements on the same issue with France and Belgium and those pacts are expected to take effect in 2006.
Hat Tip: Benefitslink.com
Delta Pilots Agree to 14% Cut In Wages
The pilots' union of bankrupt Delta Air Lines Inc. on Wednesday ratified an interim agreement with the carrier, paving the way for negotiations to continue toward a final deal in March, the airline said.
The interim deal, reached earlier this month between the No. 3 U.S. airline and the Air Line Pilots Association, provides for a 14 percent hourly wage reduction as well as cuts in other pay and cost items equivalent to another 1 percent, Delta said in a statement.
The union said in a statement that more than half the pilots voted to ratify the deal but as many as 42 percent voted against it. About 86 percent of its approximately 6,500 members voted, it said.
The concessions, effective from Dec. 15, will save the airline about $143 million a year until a comprehensive deal is reached, [Delta] said.
Fewer Siestas, More Family Time for Spanish Civil Servants
According to Yahoo! News (from the AP), Spain has just implemented a more friendly flex time policy which should go a long way in helping civil service employees to spend more time with friends and family at home and perhaps less time alone in siestas.
Under the new law:
Spanish government ministries will close by 6 p.m. as part of a package of measures designed to help Spaniards balance jobs and families.
The half-million Spaniards who work for the central government will now have the option of taking shorter lunch breaks, so long as they fulfill their weekly requirement of working hours, which is 37.5 or 40, depending on the job.
The problem is that, "Many Spanish civil servants work from 9 a.m. to 2 p.m., break for lunch, then come back as late as 4:30 p.m. for another three hours. Add commuting time in the morning and evening and people spend 12 hours or more away from home every day."
As some of you may be aware, these "lengthy lunch breaks ... have long been associated with the custom of taking a midday nap, or siesta. But polls suggest that, at least in cities, people live so far from their offices that few have the time to head home for an after-lunch snooze."
In other words, the new law will allow workers to take shorter lunch breaks so they can get home quicker and spend more time with their families. Could this mean the beginning of the end of siestas in Spain!
Maine Anti-Gay Discrimination Law Goes Into Effect Today
A law that provides human rights protections for Maine's LGBT community from discrimination in housing, employment and credit takes effect today.
It makes Maine the last state in New England to ban discrimination against gays and lesbians and the first to specifically cover the transgendered.
The rest of the story is here.
Go Away!: Novel Employee Lawsuit Against A Union
From the Wall Street Journal, a story about what happened when a group of employees got really annoyed with a union's attempt to organize them:
When a union organizer showed up unexpectedly at Elizabeth Pichler's Bethlehem, Pa., home on a cold Saturday afternoon in February 2004, she shut the front door on him.
"It annoyed me that anybody could go and get information about me and come to my house," says Ms. Pichler, a 64-year-old receptionist at uniform company Cintas Corp.
A handful of co-workers at the company's Emmaus, Pa., plant were also annoyed about visits to their homes and complained to their managers. They eventually learned that the union had traced their home addresses from license plates in the company parking lot. That made them angry enough to meet with lawyers provided by the company [emphasis added] and then file a suit in June 2004 alleging their privacy rights had been violated.
It's highly unusual for workers to bring a lawsuit against a union trying to organize, and the case is threatening to send ripples through the labor movement. Labor experts regard the joint campaign by Unite Here and the International Brotherhood of Teamsters to organize laundry workers and truck drivers at Cincinnati-based Cintas as the most important current union drive apart from the battle to persuade Wal-Mart Stores Inc. to let unions represent its workers.
Few thoughts. Notice it was the always helpful in-house labor counsel who was good enough to find these workers a lawyer to sue the union - 8(a)(1), 8(a)(3) charge right there?
Also, it is hard enough for union organizers to get equal access to workers they wish to organize. One of the reasons why unions have to track license plates in order to contact workers is that because they are not allowed to access company bulletin boards and meet with workers on-site, off-duty. Also, union organizers only have derivative Section 7 rights falling under the restrictive Lechmere test rather than the more lenient Republic Aviation test for employees.
Another question I have is whether an Excelsior list was ever provided so that this license plate tactic was unnecessary.
The rest of the WSJ story can be found here.
Hat Tip: Ronald Turner
Update: Ellen Danin (Wayne) provides the cites to the cases in question:
ELIZABETH PICHLER v. UNITE (UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE
EMPLOYEES AFL-CIO), et al., 228 F.R.D. 230 (E.D. PA. 2005) Class
ELIZABETH PICHLER v. UNITE (UNION OF NEEDLETRADES, INDUSTRIAL & TEXTILE
EMPLOYEES AFL-CIO), et al., 339 F. Supp. 2d 665 (E.D. PA. 2004). denial
of dismissal of complaint case
Washington Bulletin from Deloitte Tax
From the Washington Bulletin from Deloitte Tax (thanks to Debra A. Davis):
Summary of House-Passed Pension Funding Reform Bill. On December 15, 2005, the U.S. House of Representatives passed H.R. 2830, the Pension Protection Act of 2005. The House and Senate must now reconcile differences between H.R. 2830 and the Senate’s version of pension funding reform legislation, S. 1783, the Pension Security and Transparency Act, before a final bill can be sent to the President. That process is expected to begin soon after Congress returns to work on January 31, 2006.
Updated IRS User Fee Schedule for Employee Plans. The IRS is implementing a new user fee schedule for 2006, including increased fees for Employee Plans letter rulings and determination letters. Effective February 1, 2006, the range of EP letter ruling fees will increase to $200 - $14,500. And effective July 1, 2006, under the revised and centralized EP determination letter program, the range of fees for opinion and advisory letters and determination letters involving Forms 5300, 5307 and 5310 will increase to $200 - $15,000. EP compliance fees and compliance correction fees under the Employee Plans Compliance Resolution System will remain at current levels.
December 27, 2005
Ninth Circuit "Regarded As" Disabled Decision
Update: Much more on this case from All Deliberate Speed here.
Breaking news on the disability discrimination front from How Appealing:
Divided three-judge Ninth Circuit panel affirms finding of Americans with Disabilities Act violation against PacBell for refusing to reinstate a service technician who did not disclose on his employment application that he had been found not guilty of attempted murder by reason of insanity: That'll teach the phone company to only ask prospective employees "Have you ever been convicted of, or are you awaiting trial for a felony or misdemeanor?" You can access today's Ninth Circuit ruling [in Josephs v. Pacific Bell, No. 03-56412 (9th Cir. Dec. 27, 2005)] at this link.
Circuit Judge Consuelo M. Callahan's dissenting opinion begins, "As presented to us, this case requires that Pac Bell reinstate as a service technician a person it believes may pose a danger to its customers. I dissent because unless it is determined that Pac Bell's concern that Josephs is dangerous is unreasonable, Pac Bell should not be required to send him into its customers' homes."
The decision is also interesting because it upholds liability on a "regarded as" disabled claim.
It's an even more interesting case than that. Josephs originally put on his employment application for a service technician position ("A service technician performs unsupervised, in-home telephone installation or repair") in 1997 that he had never been convicted of a felony or misdemeanor, but in fact:
In 1982, Josephs was arrested, and subsequently convicted for misdemeanor battery on a peace officer. He was also arrested for attempting to murder a high school friend who
was a quadraplegic. Josephs was found not guilty by reason of insanity, spent two-and-a- half years in a state mental hospital, and was released in 1985.
When the company found this out, they terminated his employment. The jury found the company unlawfully failed to reinstate Josephs by mistakenly regarding him as mentally disabled.
I guess (and Sam B. or Michael W. if you are out there can correct me), direct threat to the health and safety of others would not apply because Josephs in fact did not have such a disability and was just wrongly regarded as having one. But what about the fact that Josephs appears to have lied on his employment application and that such an employee might cause an employer to face negligent hiring and retention liability if he should act out again on one of its customers at their home?
In any event, this is an extremely complicated (and unsettling) case, and I would love to hear individual's impressions after they have had a chance to digest the opinion.
Hat Tip: Howard
NYC Transit Strike Settlement Imminent
UPDATE: STRIKE IS SETTLED.
The New York Times is reporting that negotiations between the MTA and TWU in the on-goign NYC transit strike are scheduled to resume again tonight at 6 p.m.
There is some sense that the sides might be able to work out their differences with the MTA's pension proposals being taken off the table, slight wage increases being agreed to over three years for the union, and the union agreeing to additional employee health care contributions.
From the Times:
In announcing a framework to settle the strike, the mediators said on Thursday that the authority had essentially agreed to drop its pension demands in exchange for the union agreeing to have its members pay more toward their health-care costs. Most current workers pay no premiums for the basic health plan.
The story is here.