Saturday, April 1, 2006
Update: How Appealing has this update from the Boston Herald on how many have come to support the Scalia photographer's actions.
Of course, one of the big news stories over the last week was whether Justice Scalia used an obscene gesture when responding to the question of a Boston Herald reporter.
In order to verify the reporter's account, a photographer for the church newspaper, who was present at the incident, released a photograph showing that Scalia indeed appeared to engage in the obscene Italian gesture.
Now comes word that the Church newspaper for which the photographer freelanced has fired him over the incident. According to the Boston Herald:
A freelance photographer has been fired by the Archdiocese of Boston’s newspaper for releasing a picture of U.S. Supreme Court Justice Antonin Scalia making a controversial gesture in the Cathedral of the Holy Cross on Sunday.
Peter Smith, who had freelanced for The Pilot newspaper for a decade, lost the job yesterday after the Herald ran his photo on its front page. Smith said he has no regrets about releasing it.
Does Smith have any type of legal claim against the Archdiocese and its newspaper? Probably not. Chiefly because what I blogged about the other day concerning the important distinction between employees and indpendent contractors.
The way the paper describes Smith as a "freelancer" for the church paper, it is unlikely that he would be considered an employee. And as an independnent contractor, and assuming there was no express job protection provisions in his contract, he would probably be unsuccessful in any employment-type claim, including a retaliation or whistle-blowing type claim (of course, even as an employee, such claims might have limited prospects of success).
No one ever said that sticking to one's principles was without cost.
So says a new survey by OfficeTeam. The most striking finding of the survey is that over half of employees report that their employers were "very supportive" of their efforts to achieve a good work/life balance.
According to the article from H.R.BLR.com:
Over 500 full- or part-time office workers were asked, "How supportive is your company of its employees' efforts to achieve work/life balance?" Fifty-three percent said their employer was "very supportive" and another 37 percent said their employer was "somewhat supportive." Only 5 percent said their company was "not supportive at all."
[Diana] Dormeyer, [Executive Director of OfficeTeam,] also noted how much things have changed for the better in terms of employer support, even in the past decade: "Telecommuting, job-share and flextime options were once the exception. Today, these and other employee benefits are increasingly common."
Surprised by these survey results? I was initially, but such findings seem part of a larger trend toward greater workplace flexibility for employees.
Here's hoping that trend continues. But then again, I'm the one blogging on a Saturday....
Friday, March 31, 2006
The EEOC is suing Honda for employment discrimination on behalf of a senior diversity manager who claims she was fired for being outspoken about racial discrimination at the company.
Monica Ways was a senior manger for diversity at Honda America's US manufacturing operations in Ohio.
Ms. Ways' job responsibilities included increasing diversity and improving the reporting of diversity matters to the appropriate federal agencies.
Ironic (but not in the Alanis Morissette way), don't ya think?
Hat Tip: PlanSponsor.com
Melissa Hart (Colorado) has posted on SSRN her forthcoming scholarship in the Fordham Law Review: Skepticism and Expertise: The Supreme Court and the EEOC (Fordham Law Review, Vol. 74, p. 1937, 2006).
From the abstract to the article:
The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission's interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court's lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation.
But this essay argues that the Court's lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court's attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view discrimination as a subject of agency expertise and of skepticism about the political agenda of an agency empowered to enforce antidiscrimination requirements.
You can download the article here.
According to this report from Yahoo! News (through the Associated Press):
Three men hired to guard pop star Britney Spears have filed a lawsuit claiming they worked long hours and were not paid overtime.
The lawsuit, filed Tuesday in Superior Court, names three companies — Britney Brands Inc., Britney Touring Inc. and Team Tours Inc. — as responsible for not properly compensating former bodyguards Lonnie Jones, Randy Jones and Silas Dukes.
Randy Jones and Dukes worked 12- to 16-hour shifts and were required to be on call 24 hours a day during trips with Spears, according to the lawsuit. Lonnie Jones worked 12-hour shifts, the suit said.
The trio claimed they were only paid a "straight salary," missed meals and didn't receive overtime pay.
I guess even pop divas have to worry about pesky little things like wage and hours laws.
In this regard, Boehner has said (as reported in the Westfall Weekly News):
The U.S. Congress needs to help troubled industries such as automobiles, steel and airlines work their way out of crippling "legacy" costs resulting from large numbers of retirees.
[H]e said he hoped the pension legislation would be finished in three to four weeks and include "practical proposals" to help the old-line industries.
"What we need to do is help those industries that have legacy costs, that have large numbers of retirees relative to their active workers, to see if we can help them work their way out," Boehner told a news conference.
Agree? Although I am sympathetic to the current plight that the airline and automobile industries find themselves in, I don't believe poor management of a company deserves a government bailout with taxpayer money. In this crazy world of pension reform, I am actually on the same side as the Bush adminsitration which "has opposed help for specific industries in the pension bill."
I know I am being a bit polyannish here, but wouldn't it be great if these companies would just live up to their pension obligations and slash costs elsewhere (say in the executive compensation area) so that they could meet their obligations?
It appears that Delphi is plaining to ask the bankruptcy court to void its collective bargaining contract with its workers so that it can restructure its labor costs and emerge successfully from bankruptcy. The restructuring would include laying off 8,500 salaried workers and closing 21 of 29 Delphi facilities.
At the same time, General Motors has been seeking substantial savings on its labor costs by laying off a large number of salaried workers and by engaging in a substantial buy out of a number of workers.
The problem is that if Delphi is successful in having its CBA with the UAW voided by the court, there could be serious repercussions for GM if the Delphi UAW workers than go out on strike to protest the voiding of the contract. In fact, a substantial work disruption could be downright disastrous for GM which is trying to recover from $10 billion dollars in losses in the previous year.
Things are just not getting any easier for American car makers and a Chapter 11 bankruptcy seems more and more likely for GM.
Hat Tip: Miriam Cherry
Thursday, March 30, 2006
The Department of Labor's Employee Benefits Security Administration is co-sponsoring a free two-day seminar with the New Mexico Insurance Division of the Public Regulation Commission to provide practical information, helpful tips, and clarification regarding New Mexico and federal health benefit laws. Representatives from the U.S. Department of Health and Human Services and the Internal Revenue Service will join the presentation. The seminar will be held in Albuquerque on May 9-10, 2006.
Interesting entry today at blackprof.com (Paul Butler) about how some minorities find themselves under suspicion at work merely because of the color of their skin:
So many African-Americans have stories about being challenged by security guards when they are just trying to go to work or school. My friends who work at law firms, especially, say this is commonplace, especially if they are dressed casually.
My most egregious case occurred several years ago here at the [George Washington] law school. I was in my office working late - maybe about 9 pm on a week night. A security guard patrolling the building saw me sitting at my desk and asked me to show some id. I wish the Congresswoman [McKinney] had been there!
If everybody is challenged, no problem. The perception, however, is that some security guards regard minorities suspiciously when whites in the same situation are given the benefit of the doubt. It doesn’t mean you should go around hitting people (if that’s what actually happened [with Congresswoman McKinney]) but does bring to mind the DMX classic "Y’all Gon’ Make Me Lose My Mind."
In most of the employment law classes I teach, one of the first topics covered, by necessity, is whether a given individual is an employee or an independent contractor under the appropriate independent contractor test. Most of these tests turn on the amount of control the employer exercises over the given worker.
Such characterizations are crucial in employment law becasue it generally goes to whether a workers is covered or not covered under numerous employment laws.
Now comes word that the Department of Labor (DOL) has sued a janitorial company in California for misclassifying its employees as independent contractors. According to the article in Cleaning and Maintenance Magazine (which is based on another article from HR Business and Legal Reports):
[DOL] claims the misclassification resulted in violations of federal minimum wage, overtime pay and recordkeeping rules.
The department is seeking at least $900,000, including damages and back wages, for work performed between July 1, 2003, and July 1, 2005, in movie theaters throughout Southern California, the article noted.
Just another object lesson that employers need to think long and hard before making such apparently easy decisions as whether a worker is an independent contractor or employee, or exempt or non-exempt.
As featured on Dr. Sanity blog's Carnival of Insanities:
Every year during my employment discrimination law class, we end up discussing the Hooters Restaurant case for purposes of determining what is a bona fide occupational qualification (bfoq) under Title VII. The question in such cases is whether the hiring criteria that the employer employed, although unlawfully discriminatory, nevertheless serves the central mission of the employer and can be saved under the bfoq affirmative defense.
For Hooters, for example, the question is whether the central mission of the restaurant is vicarious sexual entertainment or serving food. The EEOC sued the resaurant on the basis that its central mission was providing food and thus it could not exlcude men from waiter positions at the restaurant. Eventually, the parties settled on terms favorable to Hooters because, as everyone know, Hooters is about vicarious sexual entertainment, not food.
In any event, our conversation of bfoqs and Hooters would often conclude by considering Hooters Air, which had scaddily dressed women performing some of the functions of the airline flight attendant. Bfoq?
Now comes word that Hooters Air is suspending its regularly scheduled services to Myrtle Beach, SC and other cities after three years of service.
But I guess it still makes a good bfoq hypothetical. Oh, well.
Wednesday, March 29, 2006
In the update, Professor Michael Fischl, who teaches labor law at the law school, had this to say:
a group of very courageous univ of miami students -- together with the equally courageous campus episcopal chaplain -- took over the admissions office in the administration buidling here yesterday, during a rally held on campus to support the UNICCO strikers. several other clergy and a number of strikers also formed a human blockade across US-1 -- the principal thoroughfare in this part of south florida -- and were arrested. this morning's miami herald reports that there was a middle-of-the-night agreement reached between the student "occupiers" and univ. president donna shalala (a report independently confirmed by "sources close to the students").
taking over the admissions office was stone-cold brilliant. (1) univ officials never expected it, focusing instead on the president's office. (2) it is the busiest season in admissions, for among other things it is the place where visiting parents and potential students begin their campus tours. (3) it is on the first floor of the admin building and what's going on inside is visible to folks outside the building. (there were a lot of faculty, students, workers, union folks, and clergy out there from noon until the settlement; i was there for a while in the evening and it was an extraordinary scene.)
in return for permitting the folks in admissions to get back to work this morning, the students reportedly secured from president shalala promises (a) to condemn the intimidation and coercion of the strikers by UNICCO; (b) to take an active role in bringing UNICCO and the SEIU to a resolution of the crisis; and (c) to host a meeting with the union, workers, faculty, and students on the topic within the next 48 hours.
whether this represents "the turning point" obviously remains to be seen, but our distinct impression is that UNICCO -- a nationwide facility services contractor with union contracts at over 100 of its job sites -- would not be conducting its union campaign unless it thought it was doing the bidding of the UM administration. the agreement reportedly secured by the occupiers may well signal a change in the politics, so stay tuned.
Michael Froomkin, also a University of Miami law professor, has live blogged these events in numerous posts as well on his Discourse.net blog.
The labor news out of England and France today is not good, to say the least.
More than one million local government employees in Britain went on strike in a pensions dispute that closed schools and caused travel chaos in what unions called the biggest walkout in 80 years.
Waving banners and chanting their grievances, council workers set up picket lines outside council offices, police stations, universities, schools, libraries and museums across the country as part of the one-day stoppage.
Things in France are actually worse. Much worse:
As many as 2.7 million demonstrators marched through the streets of French cities Tuesday in one of the country's largest protests in decades, as striking workers shut down the Eiffel Tower and the Paris Opera and disrupted train, bus and airline service nationwide in opposition to a new youth labor law.
The massive show of strength created new fissures in President Jacques Chirac's government, which early this month triggered the crisis by passing the measure to waive some of France's strict job protections and give employers new freedom to dismiss people under age 26.
In comparison, things are relatively calm on the labor front in the United States.
Rather than take comfort in this fact, I sense this has less to do with the current state of affairs for labor in this country and more to do with this country's general apathy on such worker rights issues.
A new survey paints a dire picture for baby boomers heading into retirement (consistent with another post I did a number of months back on this topic).
According to the survey by Harris Interactive (completed for the A.G. Edwards Nest Egg Score), there is a general lack of preparedness for retirement among those who are not yet retired but who are soon planning to retire. I can't say that I am surprised by this conclusion given the abysmal rate of personal saving that takes place in this country.
Plansponsor.com reports the numbers:
A survey conducted by Harris Interactive for the A.G. Edwards Nest Egg Score found that, among US adults not yet retired but planning to, 58% do not know what size their nest egg will need to be to live comfortably in retirement.
In addition the survey found, among those nearing retirement (aged 55 or older), 41% do not know how big their nest egg will need to be to support them when they retire, a news release said.
Perhaps as a result of this lack of knowledge, A.G. Edwards said in the release, 69% of survey respondents who plan to retire are concerned about their ability to live comfortably in retirement. Almost half (49%) of those already retired said the same thing.
The rest of these eye-opening survey results can be read at A.G. Edwards Nest Egg Score site here.
Another article also dealing with retirement anxiety (and which discusses A.G. Edwards' Nest Egg campaign) can be found here at U.S. News & World Report.
Tuesday, March 28, 2006
Opinion Letter FLSA 2006-5 addressed
whether time spent by employees voluntarily studying English-language
lesson materials distributed by their employer is
compensable working time under the FLSA. The DOL ruled that this would
not be compensable work time so long as the four-part test of 29 C.F.R. § 785.27 were satisfied: (1) attendance must be outside of the
employee’s regular working hours; (b) attendance must in fact
be voluntary; (c) the instruction must not directly relate to the employee’s job; and (d) the employee must not perform
any productive work during the instruction.
Opinion Letter FLSA 2006-6 addressed two issues. The first was whether an employer may require exempt employees to work 45 or 50 hours per week. The second was whether an employer may require that exempt employees make up work time lost due to personal absences of less than a day. The employer requesting the opinion letter specified that it would not dock an employee's salary for failure to meet these requirements, but the employer wanted to retain the authority to discipline and/or discharge non-compliant employees. The issue for the DOL was whether the employer's retention of this authority would change the otherwise-exempt status of the employees. The DOL advised that the employer was free to implement the two rules without loss of the exemption.
Update: Although public accommodation laws are mentioned below as one legal route for aggrieved minority customers, one commentator aptly points out that Section 1981 may also be used by such customers who claim discrimination regarding their right to contract, though proof problems may prove to be overwhelming in such cases.
A federal district court (N.D. Ill.) has granted class certification to a group of 18 current and former Niketown employees, who allege that they were subjected to racial discrimination and harassment at the Chicago store on Michigan Avenue.
According to the Associated Press article:
Eighteen current and former employees of the athletic apparel retailer claim in the lawsuit that store managers used racial slurs to refer to black workers and customers. They claim the store segregated black employees into lower-paying jobs as stockroom workers and cashiers rather than giving them lucrative sales jobs.
Unfortunately, such allegations are not new and have famously led to minority employees opposing such unlawful practices through store boycotts (as in the Payne retaliation case in the Strickler & Friedman Employment Discrimination law casebook).
Additionally, and what may be even more disturbing, are allegations that Niketown staff had a practice of treating its minority customers differently in both applying different return policies for mercandise and in following their black customers through the store to make sure they do not engage in any inappopriate (read criminal) conduct.
I recall reading Patricia Williams' book, The Alchemy of Race and Rights, in a first year legal theory class at Georgetown Law a decade ago, which discussed Professor Williams' own experience with a Benetton store which engaged in similar practices.
What's interesting here is that although the allegedly unlawful treatment of employees is being challenged under Title VII in federal court, the treatment being allegedly suffered by minority customers at the same store does not appear to be similarly challenged.
Such practices toward minority retail customers have existed far too long in this country, are totally unacceptable, and should be held illegal under federal public accommodation laws.
Perhaps, it is time for an organization like the NAACP to again take on such practices in a high-publicity litigation campaign and out employers who still engages in these inane practices.
Hopefully, they will just do it.
Sticking with the FLSA theme this morning (probably all subconscious because I just finished teaching the FLSA to my students in Employer-Employee Relations), Storm's California Employment Law blog has this update from the San Diego Union-Tribune on the various minimum wage proposals being considered by the California legislature.
All three bills would raise the minimum wage to $7.75/hour, making it one of the highest state minimum wages in the country. As Storm notes, the main difference between the Republican and Democratic versions is that the Democratic version would have the minimum wage automatically adjusted for inflation on an on-going basis.
As I mentioned in previous posts (here and here), look for the Democrats to continue to use the minimum wage as a wedge issue with voters during this year's elections. Not only will we see legislative efforts such as this one in California, but there is sure to be ballot initiatives in many states as well.
In the recent case of Belt v. EmCare, Inc., 05-40370-CV (5th Cir., Mar. 24, 2006), the Fifth Circuit Court of Appeals considered whether nurse practitioners (NPs) and physician assistants (PAs) were exempt professional employees under the Fair Labor Standards Act (FLSA) and thus not due overtime from their employer.
Although it would initially appear that such NPs and PAs exercise a large degree of independent discretion and also have a large amount of advanced training for their jobs, two hallmarks for being considered exempt under the duties test for white collar exemptions under the FLSA, the Fifth Circuit focused on another aspect of determining the exempt status of an employee: the salary basis test.
Under the salary basis test, an exempt employee must normally be paid on a salary basis, and the NPs and PAs at issue in this case were paid on an hourly basis. Nevertheless, there is an exception to the salary basis rule for certain professionals which provides:
that the salary-basis test does not apply to “an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof” (the “salary- basis exception”). Because the parties agree that plaintiffs satisfy the duty requirements of the professional exemption and are paid hourly, the sole interpretive issue in this appeal is whether NP’s and PA’s hold a license permitting, and actually engage in, “the practice of . . . medicine or any of [its] branches.”
Deferring to the Department of Labor (DOL) and its informal interpretive statements on the matter finding that such workers do not meet the salary-basis exceptions because they do not practice medecine within the meaning of the exception, the Fifth Circuit found that such employees were non-exempt and were owed overtime wages from their employer for hours worked in excess of 40 in a given workweek.
Hat Tip: How Appealing
Monday, March 27, 2006
The Associated Press reports on the legal fees that Northwest and Delta Airlines attorneys are seeking as they take the carriers through the bankruptcy process:
As Delta and Northwest press employees to take deep pay and benefit cuts, their lawyers and consultants are asking bankruptcy court judges to approve $59 million in fees and expenses for 3 1/2 to 4 1/2 months of work.
Complicated bankruptcy cases commonly generate big fees for lawyers - so it might not be surprising that, by the time the two airlines exit Chapter 11, the tab could be $276 million or more. But such bills also routinely draw criticism from employees, creditors and other parties - and with Atlanta-based Delta Air Lines Inc. and Eagan, Minn.-based Northwest Airlines Corp. asking employees for wage concessions, legal fees are indeed an issue.
For instance, one law firm billed Northwest $130 for long-distance faxes, at $1.25 per page. It charged 10 cents for each photocopy, adding up to $17,309. It billed more than $183,000 for online research.
Billing records show 59 lawyers from Bruce Zirinsky's law firm alone working on the Northwest case. Zirinsky himself so far has logged 706.8 hours at $800 an hour. That added up to $565,440 in 3 1/2 months. Zirinsky did not return a phone call seeking comment on the fees
Disbelief and outrage here. Anyone else? Those of you who think that this type of billing practice is justified, please help me understand.
Disbelief and outrage here. Anyone else? Those of you who think that this type of billing practice is justified, please help me understand.
This long piece in the Sunday New York Times relates the unenviable position many workers find themselves in not only after being laid off, but even after going through retraining and education programs to find new jobs. It is adapted from a book excerpt from "The Disposable American: Layoffs and Their Consequences" by Louis Uchitelle, an economics writer for The New York Times.
The story relates a number of stories about individual workers who were laid off from their jobs, given retraining and education for other types of jobs, and who were thereafter generally unable to find new equivalent employment.
Here is the depressing conclusion to the excerpt:
The process was like a funnel: wide at one end, where all the laid-off workers go in, and narrow at the other, where a limited number gradually emerge into retraining and, if they are lucky, new jobs at decent pay. Mark A. Crouch, a professor of labor studies at Indiana University, used another analogy to describe the recycling of laid-off workers. He called it a "burial program."
Not a pretty picture at all, and one that requires us to reexamine how we should deal with laid off workers in 21st century America so that being laid off does not become the equivalent of being buried.
Hat Tip: Ronald Turner