Tuesday, March 7, 2006
Update: Michael Fitzgibbon of Thoughts from a Management Lawyer tells us that a strike blog has been utilized in a similar fashion during the CBC strike in Canada and in that situation, the bloggers were controversially asked to remove certain "anti-management material" as part of the back-to-work protocol. They refused.
Here's an interesting story about how striking Sikorsky Aircraft workers in Connecticut are using a blog at the Connecticut Post to not only stay in touch with their fellow strikers to maintain solidarity, but also as a tool to convince the larger public of the rightness of their cause.
And they are not the only ones using the blog. Management and their allies are equally seeking to use the blog to explain its side of the story in the labor dispute.
Yet, this labor-management battle on the blog is also taking place on a new level. In short, both sides are trying to psych the other side out as far as whether the strike is actually achieiving its goals. Rather than relying on newspapers, the union and the company are seeking to mold perceptions among strikers and company officials on a real-time basis through use of the blog.
And with over 80,000 individuals already having visited the Sikorsky strike blog, there is every reason to believe that the very outcome of the strike might turn on who is more successful in molding perceptions about whether the strike is succeeding or doomed to failure.
It thus appears that another new frontier has opened up in the ongoing economic battle between management and labor as a result of the blogging revolution.
I have been practicing or teaching employment discrimination law now for almost eight years, and yet when I read case alleging facts like the ones below, I am still numbed by them.
From Jason Carroll on the Anderson Cooper 360 Degree Blog:
Several African-American and Latino workers at Allied [Aviation]'s facility in Dallas allege they were subjected to racism by supervisors and colleagues and that upper management didn't do enough to stop it.
Eric Mitchell, a former employee, described how white workers and managers used a demeaning racial slur to describe blacks. He says his immediate supervisors did little to stop it. One day he went to work and saw his name, as well as the names of several other black employees, on something called the "n----- hit list." The list was written on a bathroom wall.
I also spoke to Francisco Ochoa, who had put up with workers telling him to go back to "Mexico." The defining moment for him was when he walked into his manager's office and found a derogatory cartoon with him in it. He said it was titled: "Mexican gas chamber." Ochoa, who was battling cancer, tearfully explained how deeply it had hurt him.
When I caught up with Ochoa's former manager, the one who had the cartoon on his desk, he told me that while the cartoon probably should not have been on his desk, whoever drew it was "a good artist." He said Ochoa never complained to him about the cartoon.
I realize that these are only allegations which may or may not be true, but even if only some of these facts are true, it is a chilling reminder that this country has a long way to go on the employment discrimination front.
Not only must companies do a better job training their employees about sexual harassment policies and the benefits of diversity in the workplace, they have to be willing to take appropriate actions when the circumstances require it. In this case, the EEOC has already determined that, "Allied did too little, too late to stop the racism at its facility."
Art Leonard (New York Law School (Labor and Employment Law Program)) has just launched a new law blog called Leonard Link. In an email accompanying the announcement of the new blog, the blog's coverage is explained this way:
Leonard Link is a blog that features reporting and commentary on law, music, film, and current events, with a special emphasis on Sexuality & the Law.
For example, some of Professor Leonard’s recent posts have included a post regarding an IRS memorandum made available to the general press and tax reporting services advising that registered partners in California may not use the device of “income-splitting” that is allowed for married couples to reduce their taxes, a post pertaining to the New Jersey Bar Association soliciting applications for a new position that is designated for an LGBT lawyer to represent the LGBT segment of the NJSBA membership, and a very interesting classical music post commenting on a Finnish recording of choral music by Jaakko Mantyjarvi.
Welcome to the blogosphere, Art!
FLU BUGGED? According to the National Foundation for Infectious Diseases, the flu causes an estimated $10 billion in lost productivity each year. Forty percent of respondents in an NFID survey get angry and annoyed at co-workers who come in sick - and this year that level of anger was even higher.
Some of that was no doubt attributable to the fact that nearly a third of those surveyed said they had contracted the flu from a co-worker. On the other hand, some 60% of those who have shown up sick said they did so out concern that their work would not get done.
Putting on my workplace prof hat here for a second, if a person decides to keep themselves out of work because of the flu, can such leave potentially qualify as FMLA leave? The answer is not clear.
Even though having the flu may keep someone out of work for more than three days and lead to multiple doctor visits and a prescription for one of the new-fangled flu drugs, the regulations to the Family and Medical Leave Act (FMLA) seem to suggest that having the flu is not a "serious health condition" due protection under the statute, unless complications arise. See 29 C.F.R. 825.114(c).
Thus, like certain conditions under the American with Disabilities Act such as kelptomania and pyromania which are per se non-disabilities, one could look at the flu and other similar examples (common cold, ear ache, stomach ache) in the FMLA regulations as per se non-serious health conditions under the FMLA.
Nevertheless, at least one court has found that flu cases which meet the regulatory definition of serious health condition under the FMLA can nevertheless qualify for FMLA protection. See Miller v. AT & T Corp., 250 F.3d 820 (4th Cir. 2001) ("[The FMLA regulation] simply does not automatically exclude the flu from coverage under the FMLA. Rather, the provision is best read as clarifying that some common illnesses will not ordinarily meet the regulatory criteria and thus will not be covered under the FMLA.").
Just a little FMLA talk for your Tuesday morning enjoyment.
Monday, March 6, 2006
Here's a disturbing report from Daily Kos about how the Treasury Department is tapping federal retirement funds so as not to reach the national debt limit.
According to the story:
[T]he U.S. Treasury suspended investing in the Federal Employees Retirement System to avoid hitting the legal debt limit.
Today, Treasury Secretary John Snow announced that not only have investments in the system been suspended, the fund is currently being tapped to keep the government going.
And according to the AP:
Treasury Secretary John Snow notified Congress on Monday that the administration has now taken "all prudent and legal actions," including tapping certain government retirement funds, to keep from hitting the $8.2 trillion national debt limit.
In his letter, Snow notified lawmakers that Treasury would begin tapping the Civil Service Retirement and Disability Fund, which Treasury officials said would provide a "few billion" dollars in extra borrowing ability.
Officials have said that once the debt limit is raised, the investments taken out of the pension funds would be replaced and any lost interest payments would be made up.
Under ERISA, any diversion of plan funds for non-plan purposes would not be permitted. So why are we allowing the federal government to follow this potentially dangerous borrowing strategy?
Given the current fiscal straits the federal government finds itself in, it does not seem beyond the realm of possibility that one day it may be difficult for the government to replenish these retirement funds after dipping into them.
Consistent with a post I did a number of weeks ago on the difference between pension forfeiture in public versus private employment, here is a story where a public employee did lose a large pension for engaging in criminal conduct.
From the story at WBZ Newsradio 1030 (from the AP):
[Massachusetts'] highest court on Monday ruled that a brother of fugitive mobster James "Whitey" Bulger must forfeit his $65,000-a-year state pension because he lied to grand juries investigating the gangster's disappearance.
Lawyers for John "Jackie" Bulger, a retired court clerk magistrate, had argued that his crimes -- essentially lying when he said he hadn't heard from his brother since he'd fled shortly before his indictment in 1995 -- were based on family loyalty and didn't affect his job.
However, the Supreme Judicial Court ruled that he had an "unwavering obligation to tell the truth" to grand juries investigating his brother's disappearance.
Yet another example of how courts and public employers are willing, and able, to have their employee's pensions forefeited in appropriate circumstances for criminal misconduct.
Although ERISA's anti-alienation rules clearly would not permit this result, I think the question must be asked: Why should public employees and private employees be treated differently in this regard? If an employee engages in criminal conduct of sufficient severity, why shouldn't the private employee also have to forfeit their pension? Does it merely come down to the fact that the public employee is receiving their pension benefits from taxpayer money or is there more going on?
Do people with tattoos get treated differently at work? Should employees with tattoos go out out their way to hide their tattoos while at work? Is having a tattoo a good reason for being terminate from a job or not hired at all?
All of these questions, and more, are addressed in this noteworthy artice in the Reno Gazette-Journal.
Here is some of what the article by Brandy Dela Vega has to say on this timely topic:
While a Gen-Xer in the office might not look twice at exposed ink or metal, a Baby Boomer might find it offensive to display body art at work.
In a 2001 study done by Vault.com, a research and employment information services company that profiles companies in the U.S., almost 60 percent of employers would be less likely to hire someone with visible tattoos or piercings. Almost half said they would have a lower opinion of someone they work with or meet who has visible body art.
The key word in the tattoo issue seems to be "visible," as 45 percent of those same employers said they themselves have a tattoo or piercing other than pierced ears. When body art is concealed, only 11 percent of employers said it would affect their decision to hire someone.
That isn't stopping lawsuits filed against companies with restrictions on body art.
Earlier this year, an employee sued Costco Wholesaler for religious discrimination when she refused to remove her facial jewelry and comply with company policy.
The employee was a member of the Church of Body Modification and said wearing facial jewelry was a practice required by her religion. The U.S. District Court for the District of Massachusetts threw out the case after finding that Costco attempted to make reasonable accommodations for her and that her religion did not require she wear piercings at all times.
Of course, under the very deferential religious discrimination reasonable accommodation standard, the outcome of this case is not surprising at all. And besides religious discrimination, I think it would be hard to argue that any other form of unlawful discrimination is implicated by not hiring someone because of body art if a grooming policy is applied uniformly.
That being said, in recent times, more states have enacted so-called off-duty conduct statutes which protect employees in engaging in lawful activities outside of work. Of course, with tattoos, unless they are completely concealed, tattoos come to the workplace with the worker and, therefore, would probably not be readily protectible under such laws.
At the end of the day, a commentator in the article I think has it right when he says that, "[e]mployers want their employees to look a certain way to create a certain ambiance . . . . The reality is tattoos, piercings, body art can be restricted by dress codes or uniform requirements."
The Texas Supreme Court Friday ordered a Dillard Department Stores sales associate to arbitrate a claim for workers-comp retaliation. The opinion addressed important issues concernng how state contract law governing notice, consent, and enforceability should be applied to arbitration agreements -- issues on which courts are splintered.
Dillard presented Delia Garcia, the sales associate, with an arbitration agreement at a store-wide meeting. The arbitration agreement stated that employees were deemed to accept the arbitration agreement by continuing their employment. Dillard simultaneously presented Garcia with an acknowledgment form. This form had a place for the employee’s signature “acknowledging receipt of the [arbitration] Rules.” Garcia didn’t sign the form because she “didn’t agree to be bound by the terms of the agreement.” She did, however, continue to work at Dillard, and two years later filed suit for workers-comp retaliation.
Dillard moved to compel arbitration. Garcia responded with three arguments. First, she argued that she had not received all the pertinent arbitration documents, so there was insufficient notice and consent to create an enforceable arbitration agreement. The trial court and court of appeals agreed with her that there was a factual issue as to whether she had received the pertinent documents (many other courts have refused to enforce arbitration agreements which incorporated by reference arbitral rules to which the employee was denied access). However, the Texas Supreme Court, extraordinarily, found that she had received all the documents (seems like a fact issue, inappropriate for an appellate court to resolve, especially on mandamus).
Second, Garcia argued that her refusal to sign the acknowledgment form indicated her lack of consent to arbitration. But the Court disagreed, noting that the form merely acknowledged receipt of the rules; the terms of the arbitration agreement provided that consent occurred when she continued to work for Dillard. Third, Garcia argued that Dillard had retained a unilateral right to modify the arbitration agreement, and that this made the agreement unenforceable (as many courts, including Texas courts, have held). But the Court found that Dillard had not retained such a right under the contract.
The case is In re Dillard Department Stores, Inc. (password needed). For a much more extensive discussion of these and other issues related to the formation of employment arbitration agreements, see my forthcoming article Contract Formation Issues in Employment Arbitration.
Christopher Knott sends word about his web-site, Anonymous Employee.com, which seeks to help employees anonymously settle their on-going workplace disputes with their employers. To my knowledge, this is the first web site of its kind.
Here's how Chris explains it:
AnonymousEmployee.com provides a communication tool for the workplace
where employers and employees can communicate about confidential matters
without needing to reveal their identity. The Anonymous Employee site
has been created to help resolve issues when normal, internal options
have failed. They provide a number of options including communication
and employment mediation.
If you have lots of time on your hands, you can review our Brochure and
Sounds like a great and much-needed site! Check it out when you get a chance here.
Michael Waterstone (left), The Untold Story of the Rest of the Americans with Disabilities Act, 58 Vanderbilt L. Rev. 1807 (2005) (arguing that courts and commentators should not overlook Titles II and III when evaluating the overall success of the ADA).
Angela Onwuachi-Willig (middle-left) & Mario L. Barnes (middle-right), By Any Other Name?: On Being “Regarded As” Black, and Why Title VII Should Apply Even if Lakisha and Jamal Are White, 2005 Wisconsin L. Rev. 1283 (arguing that discrimination is triggered not by physical race, but by the constructed social meanings of race, and that the law should provide remedies accordingly).
Shelley Roberts Econom (right), Confronting the Looming Crisis in the Federal Acquisition Workforce, 35 Public Contract L.J. 171 (2006) (arguing that budget cuts to the government acquisition workforce have been too severe, particularly in light of increased government procurement and outsourcing).
Kelli A. Webb, Note, Learning How to Stand on Its Own: Will the Supreme Court’s Attempt to Distinguish the ADEA from Title VII Save Employers from Increased Litigation?, 66 Ohio St. L.J. 1375 (2005) (arguing that courts should apply the Wards Cove defense of a “reasonable employment goal” to ADEA disparate impact claims).
Sarah Carrington Walker Baker, Note, A Choice of Rules in Title VII Retaliation Claims for Negative Employer References, 55 Duke L.J. 153 (2005) (arguing that references cases illustrate the need for a broad rule defining adverse employment action in retaliation cases).
Adam Schneid, Note, Assignability of Covenants Not to Compete: When Can a Successor Firm Enforce a Noncompete Agreement?, 27 Cardozo L. Rev. 1485 (2006) (arguing that courts should adopt a balancing test).
Taking State Property Rights Out of Federal Labor Law. Here's the abstract:
Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not the employer has state right-to-exclude. Further, because the property rights issue is often complex, an employer cannot be sure of its ability to exclude organizers until litigation has ended and is thereby forced to decide whether to allow what is arguably a trespass, or protect its property interests and risk a labor law violation. The focus on state property rights also creates significant problems for the NLRB, as its lack of expertise in state property law leads to delay and often poorly-reasoned decisions.
I propose, therefore, a new analysis that eliminates consideration of state property rights from the NLRB’s right-to-access cases. Under my proposal, which I argue is more faithful to the Supreme Court’s Lechmere doctrine than the current analysis, the NLRB would focus on whether the manner in which an employer excludes organizers chills employee rights, while property issues—such as a trespass claim against organizers—would be determined by state courts. By creating a set of presumptions to guide employer attempts to exclude, the proposal would provide clarity for all parties, better protect employees’ labor rights, and free the NLRB from its struggles with state property law.
Sunday, March 5, 2006
- Jesse Rothstein (left) & Albert Yoon (right), Mismatch in Law School (97).
- Michael McCann, The Reckless Pursuit of Dominion: A Situational Analysis of the NBA and Diminishing Player Autonomy (85).
- Devon W. Carbado, G. Mitu Gulati, & Gowri Ramachandran, Makeup and Women at Work (83).
- Jerry Kang & Mahzarin Banaji, Fair Measures: A Behavioral Realist Revision of 'Affirmative Action' (74).
- Michael Selmi, Was the Dispate Impact Theory A Mistake? (72).
- Albert Feuer, When Are Releases of Claims for ERISA Plan Beneifts Effective? (75).
- Richard L. Kaplan, The Medicare Drug Benefit: A Prescription for the Confused (37).
- Rashid Bahar (photo above), Executive Compensation: Is Disclosure Enough? (35).
- Aditya Parthasarathy, Debashish Bhattacherjee, & Krishnakumar Menon, Executive Compensation, Firm Performance, and Corporte Governance: An Empirical Analysis (35).
- Tapen Sinha & Alejandro Renteria, The Cost of Minimum Pension Guarantee (27).
Interesting article in the Green Bay Press Gazette this past Thursday about the new bargaining strategy being undertaken by the AFL-CIO in order to become more competitive in certain industries. According to the paper, a similar strategy has been utilized with much success by the UAW.
From the article:
AFL-CIO officials attending their federation's winter meeting said Tuesday that they are realigning the way they do business by starting four "industry coordinating committees" covering the entertainment and media industry, nurses, telecommunications and public employees.
One of them, the Arts Entertainment Media Industry Coordinating Committee, is likely to target one of the nation's broadcast networks next year for contract negotiations involving union members ranging from actors and TV newscasters to stage technicians and office workers.
Similarly, unions representing public employees have formed a coalition that is considering trying to target one or more states where they have recently lost or never had collective bargaining power. In the past year, Republican governors in Indiana, Missouri and Kentucky have abolished bargaining rights for public employees.
Well, it has been clear for a while that the AFL-CIO needed to reinvigorate its organization strategies (afterall, that was one of the main beefs that led to the formation of the Change to Win Coalition).
Will this be enough to start pushing the unionization numbers back up again in the United States?
No idea, but it seems certainly worth a try.
The federal district court for the Southern District of Ohio recently entered a large ERISA verdict against AK Steel for miscalculating how pension benefits should be calculated for a large group of former employees.
According to the AP (through the San Jose Mercury), a class of about 1,250 AK Steel former employees claimed that, "the company miscalculated the lump sum pension payment for participants in one of its pension plans [and that] the method used to calculate the payments d[id] not comply with federal law and resulted in underpayments."
The court agreed, awarding $37.6 million in damages and the rest in prejudgment interest.
AK Steel has already indicated that it plans to appeal the decision.
This has not been a good week on the labor front for AK Steel, which this past Tuesday locked out a group of union employees over a dispute over job eliminations, increased health costs, and new work rules.
From the AFP (through Yahoo! News):
Global banking giant HSBC is facing a five-million-pound (7.3-million-euro, 8.7-million-dollar) claim from a former employee, alleging he was sacked for being gay, British newspapers reported.
Peter Lewis, former global head of equities trading in HSBC's corporate and investment bank division, will claim that his February, 2005 sacking for "gross personal misconduct" was purely because of his sexual orientation.
The Independent on Sunday said the employment tribunal hearing, scheduled to start in London Monday, was the first of its kind to be brought under new British legislation extending sexual discrimination rules to gays and lesbians.
It also said it will "lay bare the macho, homophobic culture of high finance."
HSBC spokesman Pierre Goad was quoted as saying the bank "utterly rejects" Lewis's allegations, insisting he was sacked after a lengthy investigation and disciplinary hearing into claims he sexually harassed another male employee.
This should be an interesting test case for this new law and it will be worthwhile to see how the Brits handles these issues as compared to their American counterparts.