March 25, 2006
NAACP and Restaurant Settle Race Discrimination Case
Not strictly an employment case, but close enough. From today's Washington Post:
MYRTLE BEACH, S.C., March 24 -- A restaurant chain that closed two locations during a black biker rally three years ago has agreed to settle a race discrimination lawsuit brought by the NAACP, the civil rights group said Friday.
Damon's Grill will pay $125,000 and agreed to remain open during the black biker rally, which is held each May the week after a predominantly white Harley-Davidson rally.
Good to see the NAACP is still doing its share to eradicate racial discrimination from society at large.
Southwestern Law School has announced the addition of Professor Gowri Ramachandran to its faculty effective this summer. Professor Ramachandran currently is a Visiting Professor at Florida State, teaching federal jurisdiction and a survey course in anti-discrimination law. Her research interests focus on employment discrimination, federal courts, constitutional law, criminal law, queer and critical race theory, immigration law, and criminal procedure.
Professor Ramachandran earned her B.A. in Mathematics in 1997 from Yale College, an M.A. in Statistics in 1999 from Harvard, a J.D. in 2003 from Yale. She clerked for a year for the Hon. Sidney R. Thomas of the Ninth Circuit in Billings, Montana. In 2004, she was named as a Future Law Professor Fellow at Georgetown University Law Center. Since January of this year, she has taught at Florida State.
Job Hunting on Company Time
Thanks to Miriam Cherry for providing a link to a Yahoo News article reporting that, among workers who believe their Internet use is monitored by their bosses, one-quarter use their work computer for job-hunting. Naturally, among workers who think their managers are unaware of their personal Web surfing, the percentage is even higher -- about one-third. The survey was done by the professional staffing company Hudson Highland Group Inc.
March 24, 2006
Click, Clack, Moo
Orly Lobel also sends word about a book that readers can read to their children (on-line) about farm animals going on strike.
The story is "Click, Clack, Moo, Cows That Type" by Doreen Cronin. You can find an on-line version of the story here at the PBSKids.org website for the children's show "Between the Lions."
As Orly points out, for those of you who would like to enjoy the wonderful illustrations by Betsy Lewis that accompany the story, you'll need to get a hard-copy version of the book.
Some Saturday Employment Humor
Conference: The 4th Annual Employee Benefits Symposium
I am pleased to annouce that the John Marshall Law Review and the Center for Tax Law and Employee Benefits will be presenting: The 4th Annual Employee Benefits Symposium at the John Marshall Law School in Chicago on April 7, 2006 from 9 a.m. to 4:30 p.m.
Along with a dedication to Former Congressman John Erlenborn by Judge William J. Bauer of the Seventh Circuit Court of Appeals, Priscilla E. Ryan (Sidley Austin) will moderate eight employee benefit papers being presented, including one by yours truly on "Inherent Attorney Conflicts of Interest Under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries."
Other speakers at the conference include: Colleen Medill (Nebraska), Mark Casciari (Seyfarth Shaw), Justin Cummins (Miller-O'Brien), Alison M. Sulentic (Duquesne), Lawrence Grudzien (John Marshall and Valparaiso), David Pratt (Albany), and Craig Martin (Jenner & Block).
The program is free of charge. To reserve a space, please respond by April 1 by email or by phone to 312-987-1420.
Hope to meet and greet some of the readers of this blog there!
New Web Site: PensionRiskMatters.com
The blog . . . will serve as a resource for trustees, board members, consultants, money managers, attorneys and regulators to explore important ideas about pension risk issues and best practices.
Mangiero's blog includes commentary on these best practices, trends, research and recent articles with a primary goal of getting people to more clearly connect the pension governance dots.
Dr. Mangiero embraces the challenge of facilitating a meaningful conversation about what is arguably one of the most important topics of our time. "Waiting is not an option. Representing trillions of dollars, retirement trustees and related parties have the power to move capital markets and impact people's lives now and for years to come."
Looking forward to read this most worthwhile of blogs, especially given the current pension environment.
Best of luck, Susan, on your new endeavor.
Aviaphobia and Its Impact On Work
Up to 13% of employees have a significant enough fear of flying that their employers may have to assign them to different offices or different types of jobs so they do have to fly as much. Even more, employees may do their careers real damages when they miss out-of-town meeting or refuse promotions so they do not have to fly.
As a result, according to a survey of employers by the American Management Association, "aviaphobia impede[s]
the development of talent and force[s] [employers] to reassign employees with
solid sales or marketing skills to jobs that don't involve air travel."
The good news here is that overcoming the fear of flying is something that employees are very much capable of doing:
Psychologists say that most people who are afraid to fly can be treated to overcome their fears and there are a number of companies and therapists available to treat the problem. (One such company mentioned in the [USA Today] article is Soar (www.fearoflying.com)). Success rates for those who receive help, the article notes, are above 90 percent.
Illinois Supreme Court Rejects "Knowing & Voluntary" Standard for Employment Arbitration
The Illinois Supreme Court yesterday ruled that an employee's "knowing and voluntary" consent is not a precondition to enforcement of an employment arbitration agreement. The case is Melena v. Anheuser-Busch, Inc., No. 99421 (Ill. March 23, 2006).
The plaintiff had signed an arbitration agreement that Anheuser-Busch had given her as a condition of continued employment. When she sued for workers' compensation retaliation, Anheuser-Busch moved to compel arbitration. The lower courts denied the motion, ruling that employment arbitration agreements were not enforceable unless employees entered into them knowingly and voluntarily. The appellate court noted "serious reservations" about whether an arbitration agreement, offered as a condition of employment, "is ever voluntary," and deemed "illusory" whatever choice the plaintiff had in arbitration.
The Illinois Supreme Court reversed. Quoting Steve Ware (left), the Court held that under "ordinary, plain-vanilla contract law", the plaintiff had consented by signing the arbitration agreement, regardless of whether she had read or understood it. The Court reasoned that imposing a "knowing and voluntary" standard would conflict with the U.S. Supreme Court's oft-stated pronouncement that state statutes or court decisions cannot hold arbitration agreements to an enforceability standard any higher than standards applied to contracts generally. The Court also found that the Seventh Amendment was not implicted because that Amendment only confers a right to trial by jury "once it is determined that the litigation should proceed before a court," and here the plaintiff had agreed to arbitration.
A dissent argued that Anheuser-Bush's arbitration program was unenforceable because it would not have effectively vindicated the plaintiff's statutory rights, because the plaintiff's discharge took her outside the scope of the arbitration agreement which covered "all employees", and because the plaintiff had not knowingly and voluntarily consented to arbitration. The dissent cited David Schwartz (right) for the latter proposition.
The federal circuit courts and state courts are split on whether to impose a "knowing and voluntary" standard. The standard is usually attributed to the 9th Circuit case of Prudential v. Lai. That court, however, adopted only a "knowing" standard, but cited to legislative history dicussing a "knowing and voluntary" standard. For an up-to-date discussion of the cases going both ways, see Contract Formation Issues in Employment Arbitration, 44 Brandeis L.J. 415, 449-50 (2006).
March 23, 2006
Awards for the 30th Annual Wagner Competition
Here are the complete results of last weekend's Wagner Moot Court Competition at New York Law School:
- National Champions - Michigan State University College of Law
- Finalists - Southern Methodist University Dedman School of Law
- Best Preliminary Team - Northern Kentucky University Salmon P. Chase College of Law
Oral Advocacy Awards
- Best Oral Advocate - Steven Meyerand (Michigan State University College of Law)
- Best Preliminary Oralist - Steven Meyerand (Michigan State University College of Law)
- Second Best Preliminary Round Oralist - Donna Glover (University of Baltimore School of Law)
- Best Petitioner Brief - Northern Kentucky University Salmon P. Chase College of Law
- Second Best Petitioner Brief - University of Tennessee College of Law
- Third Best Petitioner Brief - John Marshall Law School
- Best Respondent Brief - Chicago Kent College of Law
- Second Best Respondent Brief - Michigan State University College of Law
- Third Best Respondent Brief - University of Memphis School of Law
rb (thanks to Kayla Rosenberg & Zhanna Ziering, Wagner Co-Chairs)
City Serious About Police Training Costs
If you are thinking about becoming a police officer for the City of Los Angeles, you might want to think good and hard before you make that commitment. It could turn out to be a really costly decision if the job turns out not to be to your liking.
According to a report by KNX1070 Newsradio:
The City of Los Angeles is charging that 53 former police officers violated their employment contracts when they skipped out within five years after joining the force. The city is seeking to recoup the$1.6 million that it cost to train the officers.
Thirty of those charged are challenging the allegation and have hired an attorney to file a class action countersuit on their behalf [under the Fair Labor Standards Act].
Since 1996, the city has required recruits to sign five year contracts. An earlier investigation determined that some were leaving soon after graduation to accept positions with other police departments. The contract stipulates that officers will repay part or all of the $60,000 it cost to train them if they leave the job early.
From an employment law perspective, the recruits appear to have an uphill legal battle. I don't see any reason why the contract as written would not be enforced by the courts, as long as there are no contraction formation issues.
I also have to admit that I do not understand the FLSA countersuit which according to the recruit's attorney alleges that, "[i]t is unlawful under the U.S. Fair Labor Standards Act for any employer to ask for money back from an employee.'' Huh?
On the other hand, I could foresee a potential issue under the state wage payment and collection law if such repayments were seen as unauthorized deductions, but the recruits in question are no longer employees of the LAPD so I don't see how that would be an issue either.
At the end of the day, the contract will most likely be enforceable as written and another harsh lesson on the importance of reading employment contract terms before signing an agreement will hopefully be learned.
ADR for the University
Interesting article this morning from Inside Higher Ed about how one university is utilizing alternative dispute resolution (ADR) mechanisms in order to avoid a high profile clash between the university president and its faculty.
The story centers in on the State Univerity of New York College of Technology at Alfred where the university president and the faculty were in conflict over the president's perceived domineering management style. As with other recent high profile cases, the faculty was about to vote no confidence on the president's leadership of the university.
Instead, the parties were able to step back from the brink:
aided by an unusual process in which SUNY’s systemwide faculty group stepped into the fray to help resolve the dispute. A visiting team’s highly critical report offered both stinging criticism (for all parties) and a set of recommendations for improving campus governance, one of which called for a seasoned administrator to spend six months on the campus as a mediator.
To look forward rather than merely back, the University Faculty Senate’s visitation team offered a set of recommendations for both the Alfred State senate and the administration. But its central theme was that Gupta, who had been a technology dean at the University of Houston before becoming Alfred State’s president, had put together a “relatively young and novice administration” that needed experience and stability.
It offered several options for fixing that problem, and last month, the chancellor of the SUNY system, John R. Ryan — who until then had stayed on the sidelines of the process — stepped in and chose one. He appointed Anne Huot, the SUNY system’s executive vice provost for academic affairs, to spend six months on the Alfred State campus as a mediator, to help administrators and faculty leaders work together.
So obvious, yet ingenious. It is a wonder that other dysfunctional universities have not used such ADR mechanims in the past to overcome their turbulent times.
It also provides an object lesson for all employers with disgruntled employees. Sometimes, it is worthwhile to take a step back and have an objective observer diagnose and help mediate the problems an organization is having.
Moss on Academic Employment and Academic Deference
Scott Moss (Marquette) sends word that he has just posted his new piece, Against 'Academic Deference': How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine (Berkeley Journal of Employment and Labor Law, Vol. 27, No. 1, 2006), on SSRN.
Scott explains his piece this way:
It's a criticism of the doctrine that courts should defer to academic (or other white-collar) employers based on a theory of "academic deference." The article criticizs the academic deference doctrine as out of step with (a) the purposes of Title VII, (b) recent case law clarifying when summary judgment is appropriate in Title VII cases, and (c) recent scholarly study of the power of "social norms" to obviate the need for lawsuits as a guarantor of workplace fairness.
As someone who teaches both employment law and higher education law, this sounds like a must-read! You can read the abstract and download the article here.
DOL Sets Aside $4M for Faith-Based Projects
The Department of Labor's Employment and Training Administration (ETA) today announced a $4 million grant competition for faith-based and community organizations to help hard-to-serve populations prepare for and succeed in employment opportunities.
"Faith-based and community organizations provide a vital complement to the employment and training resources available through local One-Stop Career Centers," said Assistant Secretary of Labor for Employment and Training Emily Stover DeRocco. "Organizations that successfully compete for these funds will provide the extra help that some individuals need to prepare for and ultimately succeed in the workplace."
Services funded by the grants will focus on individuals who face significant hurdles to employment, including welfare recipients, high school dropouts and ex-offenders. Grantees will provide personalized care and supportive services, such as mentoring or life skills coaching, to enable individuals to fully utilize the employment services offered at local One-Stop Career Centers.
March 22, 2006
Reading the Alito Tea Leaves on Public Employee Free Speech
As some of you might know, the Supreme Court yesterday heard reargument in the public employee case of Garcetti v. Ceballos (see previous posts on this case here and here). To refresh, Ceballos concerns a case in which:
Ceballos wrote a highly critical memorandum to his supervisors after he determined the sheriff's deputy had lied in the affidavit.
When his supervisors rejected his recommendation to drop the case, Ceballos told the defense attorney about what he thought were the deputy's lies and testified for the defendant at trial.
One of the more interesting aspects of this reargument was to see what types of questions Justice Alito would ask of the litigants and whether those questions would give any indication about how far he believes courts should go in interjecting themselves into public employment free speech disputes.
Here's what Alito had to say during the oral argument according to the Associated Press:
Alito actively questioned all lawyers in the case, wondering whether employers would have to specify every job duty an employee has to avoid lawsuits like the one Ceballos filed.
When Alito suggested employers want to know about problems, [the employee's attorney] said there is "much evidence" that supervisors don't always like receiving "bad news."
Kind of like reading tarot cards from these sparse remarks, but my best guess would be that Justice Alito is skeptical of the employee's position that his First Amendment rights in such situations should trump the government's right to maintain an efficient workplace.
In short, I think Alito will side with the majority for the proposition that even if Ceballos' speech may involve a "matter of public concern" under Connick, under the Pickering balancing of interests, the government's efficiency interests in such cases should prevail.
Alternatively (and to give myself some wiggle room), the Court might find (with Justice Alito signing on to the opinion) that the threshold "matter of public concern" test has not been met because Ceballos is not talking in his role as a citizen, but in his role as an employee of the government. Under such circumstances, the Pickering balance would not even have to be reached.
Either way, look for a non-employee friendly outcome.
Mixed Signals on the Frequency of Sexual Harassment Training
It would appear to be the better part of discretion to train the entire workforce since subordinate employees may not only need to know how to file a complaint under the sexual harassment policy, but also how to avoid engaging in sexually harassing behavior in the first place.
My friend Michael Fitzgibbon over at Thoughts from a Management Lawyer had a post yesterday about how employers are increasingly using sexual harassment training as part of developing a productive work culture. According to the figures cited by Michael:
The most notable results of the survey indicate that sexual harassment prevention training for supervisors occurs at almost at 90 percent of the businesses surveyed.
89 percent of companies train supervisors to prevent sexual harassment, which is an increase from 81 percent in 2004 and 79 percent in 2003. In addition, 49 percent of those participating in the survey said there were no complaints of sexual harassment in their companies, demonstrating a steady decrease from 2004, in which 44 percent of those polled said there were no complaints.
Of course, all this makes much sense given the fact that employers are given much incentive by employment discrimination law to provide such training in order to later have an affirmative defense in the face of a sexual harassment claim.
What puzzled me about the study that Michael cited was that I had just read another story which seemed to suggest that not enough employers were engaging in sexual harassment training. According to that survey:
Despite almost a generation of regulation and litigation, 41 percent of U.S. employers still do not provide preventive training for sexual harassment or discrimination according to a new survey, "EEO Compliance Practices Benchmarking," sponsored by TrainRight Solutions, a pioneer in web-based compliance training for the HR community.
The results come from 957 responses to a poll of 22,161 readers and subscribers to HR Matters E-Tips newsletter published by Personnel Policy Service, Inc., a leading provider of HR policy and compliance information.
The difference? Well, it's hard to say but there may be a large disconnect between higher management believing such training is actually taking place and the people on the ground who realize such training is in fact not taking place (although maybe under serious consideration by the company).
I would be particularly interested in hearing from readers on how this divergent data can be harmonized.
Helicopter Parents at Work
No comment here, but the Wall Street Journal's CareerJournal.com has an interesting story about how some parents are crossing the line from being involved with their children's employment to actually running the show for them.
Apparently, these types of parents, whom some call "helicopter parents," are not new to the scene and, not surprisingly, engage in the same type of hovering behavior when their children are at college as well.
In fact, in the Higher Education and the Law Seminar that I am teaching this semester, one of my students is doing her research paper on Helicopter Parents at higher education institutions and ways in which various university offices can deal with these suffocating parents from a legal perspective.
The Journal article explains that when it comes to employment, employers are taking many different approaches to dealing with these types of parents, from sending copies of recruiting and job offer letters to parents to making the parents feel like part of the process when they actually aren't.
In kinda reminds me of that Woody Allen movie scene in "New York Stories" in which wherever Woody Allen's character goes, his mother follows him in the sky as an omniscient presence. Yikes!
March 21, 2006
"This Is The Worst Case of Discrimination I Have Ever Seen"
This is how a Senior EEOC attorney described a case from the Houston, Texas area in which a black employee, Charles Hickman, was not only subjected to repeated racial slurs, but allegedly had a noose tied around his neck in a company bathroom. Hickman was the only black employee among one hundred co-workers.
The current incarnation of the pipe company, Commercial Coating Services International Ltd., has now agreed to pay a whopping $1 million dollar settlement to Hickman. Although the company is not admitting liability for the actions of its employees, the president of the company will write an apology to Hickman as part of the settlement.
As for Hickman, he claims that he is still haunted by the experiences and is undergoing psychological treatment for his ordeal.
The IRS on the Advantages of Simplified Employee Pensions (SEPs)
Small business owners have until April 17th (the regular tax deadline) to set up Simplified Employee Pensions (SEPs) and reap the potential tax benefits from doing so.
Employers can find out more about the advantages of SEPs and other pension options at the online resource guide on the IRS website.
For instance, as far as SEPs are concerned, the on-line guide explains:
A SEP allows employers to set up a type of IRA for themselves and each of their employees. Employers must contribute a uniform percentage of pay for each
employee, although they do not have to make contributions every year. For the year 2005, employer contributions are limited to the lesser of 25 percent of pay
or $42,000. (Note: the dollar amount is indexed for inflation and will increase.)
Most employers, including those who are self-employed, can establish a SEP.
SEPs have low start-up and operating costs and can be established using a two-page form. And you can decide how much to put into a SEP each year – offering
you some flexibility when business conditions vary.
- COBRA Compliance Workshop, to be held in Boston on April 26.
- Employers' Compliance Assistance Program, to be held in Denver on April 27.
- Getting It Right -- Knowing Your Fiduciary Responsibilities, to be held in Los Angeles on May 11.