April 15, 2006
Off To That Great Bus Yard in the Sky
Here's a bittersweet story from CNN.com which takes the idea of being dedicated to one's work to a whole new level:
Less than a month after retiring on his 100th birthday, longtime Los Angeles County transit employee Arthur Winston died in his sleep, his family said Friday.
Winston missed one day of work in over 70 years, and that was to attend his wife's funeral in 1988. In 1996, he received an "Employee of the Century" citation from President Bill Clinton.
Winston worked at the MTA and its predecessor agencies for 76 years. For decades, Winston reported to work at a bus yard at the crack of dawn to supervise a crew of workers as they cleaned and refueled the region's bus fleet.
Two thoughts on this inspirational story. Fist, Winston must have been one of the healthiest people ever or one of the most dedicated to only miss one day of work over all those years. And to think, my students sometimes can't find it in themselves to attend class 3 or 4 times a semester. Clearly, Winston and his work ethic were from a different era.
Second, this story provides additional anecdotal evidence that the idea of retirement is certainly not for everone. Recall my recent post about a study which indicated that more ane more employees were thinking of never retiring. Of course, Winston, may he rest in peace, took that idea to a truly amazing extent.
Hooters as a Brothel?
Well maybe according to this story from the Smoking Gun.
Apparently, the Hooters Restaurant chain may be more about sexual entertainment than vicarious sexual entertainment than initially thought.
A former male assistant manager of a Hooters' store in Alabama has filed a sexual harassment and retaliation lawsuit that claims that a corporate trainer came to his store and advised the female waitress employees that they could make extra money by engaging in sex acts with their customers.
When the assistant manager allegedly complained to corporate headquarters for himself and on behalf of some of his employees, his own local franchisee boss fired him for going above his head to corporate in the first place.
Like the Smoking Gun, we too have now looked at the Hooters' employee handbook (which is certainly more risque than your average employee handbook) and there doesn't seem anything in there about engaging in sexual acts with customers for additional compensation!
And about that bfoq issue concerning Hooters really being only a restaurant? Forget about it.
Hat Tip: Joe Slater's Student
Top-5 International Employment & Labor Law SSRN Downloads
- Raphael Won-Pil Suh & Richard A. Bales, German and European Employment Discrimination Policy (97).
- Marley S. Weiss, Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses (21).
- Rob Euwals, Daniel J. van Vuuren, & Ronald P. Wolthoff, Early Retirement Behaviour in the Netherlands: Evidence from a Policy Reform (21).
- Matthew Finkin (photo above), Life Away From Work (17).
- John T. Addison, Claus Schnabel, & Joachim Wagner, The (Parlous) State of German Unions (14).
Top-5 Benefits/Compensation//Pension SSRN Downloads
- Aditya Parthasarathy, Debashish Bhattacherjee, & Krishnakumar Menon, Executive Compensation, Firm Performance, and Corporte Governance: An Empirical Analysis (103).
- Francine J. Lipman (photo above), Taxing Undocumented Immigrants: Separate, Unequal and Without Representation (82).
- Rashid Bahar, Executive Compensation: Is Disclosure Enough? (62).
- Neil H. Buchanan, Social Security, Generational Justice, and Long-Term Deficits (58).
- Jennifer G. Hill, Regulating Executive Remuneration: International Developments in the Post-Scandal Era (57).
April 14, 2006
En Banc Ninth Circuit Upholds Finding Against Jespersen in Casino Make-Up Case
By a vote of 7-4, today the en banc Ninth Circuit reaches the same result as the majority on the earlier three-judge panel in rejecting a Title VII sex stereotyping claim brought by a casino bartender who was fired because she refused to comply with the casino's grooming policy requiring female bartenders to wear make-up. The concluding paragraph of the majority opinion begins:
We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer.
More specifically, with regard to Jepersen's claim that the requirement for certain female employees to wear make up at the casino caused an unequal burden on women, the court found:
Rather, Harrah’s “Personal Best” policy contains sex-differentiated requirements regarding
each employee’s hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders
are not facially discriminatory.
And as far as Jespersen's claim that this was gender stereotype discrimination of the type prohibited by Price Waterhouse:
There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women
should wear. The record contains nothing to suggest the grooming standards would objectively inhibit a woman’s ability to do the job. The only evidence in the record to support the stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement.
From an optimistic standpoint, I guess the outcome of this case can be seen as a partial win for employee rights advocates in that although Jespersen herself lost her case, the court clearly envisions sex-stereotyping claims on the basis of dress or appearances codes in the future if proper evidence exists to back up such claims.
Today's en banc decision in Jespersen v. Harrah's Operating Co., Inc., No. 03-15045 (9th Cir. Apr. 14, 2006) (en banc) can be read here.
Supreme Court to Hear Oral Arguments in Title VII Retaliation Case Monday
Further Update: SCOTUSblog has this further comprehensive analysis of Monday's oral arguments in White.
Update: One commentator points out that this was the issue in this year's Wagner Labor Law moot court competition at NY Law School.
As was discussed a number of months ago in a previous post, the United States Supreme Court has granted cert. in the Title VII retaliation case of Burlington Northern v. White to hopefully once and for all settle a circuit split over the meaning of an "adverse employment action" under the retaliation provisions of Section 704.
The Legal Informational Institute Bulletin from Cornell Law School provides this summary of what will be argued on Monday:
Title VII of the Civil Rights Act of 1964 forbids employers from retaliating against an employee who opposes discriminatory practices. However, the requisite provision,
42 U.S.C. § 2000e-3(a) [Section 704(a)], does not define what kinds of adverse employment decisions are actionable.
Courts of Appeal have adopted three different standards to guide this
determination: the Sixth Circuit prohibits any "materially adverse change in the terms of employment;" the Ninth Circuit prohibits any adverse treatment "reasonably likely to deter" the plaintiff from engaging in protected activity; and finally, the Fifth and Eighth Circuits only prohibit an "ultimate employment decision."
In this case, the Sixth Circuit held that a temporary suspension rescinded by the employer with full back pay, or an inconvenient reassignment, constituted actionable adverse employment decisions. The Supreme Court must now determine which of the foregoing standards is correct.
Interestingly, one of my students in my Employment Law class this semester has been doing work to help prepare the plaintiffs' side of the case for oral argument as his father's firm has been litigating this case from the beginning (the case originates in Memphis). I told him, the swell guy that I am, that he did not have to be in class on Monday.
For an excellent analysis of how this case might come out, see Ross' Employment Law Blog. Ross dubs this case as "the most important employment law case of the year." Me, personally, I think the Court is most likely to split the baby on this one and adopt the "materially adverse change" standard.
Does Governor Romney Read This Blog?
I'm sure that answer is in the negative, but it is interesting that in signing the Massachusetts Universal Health Care Coverage law, Governor Romney vetoed those sections which would have imposed a play or pay system on Massachusetts employers. Recall from my previous post on this issue that the law as passed by the Massachusetts House and Senate would have imposed a $295 per employee per year fee on employers who did not provide health care for their employees.
It was because of this employer play or pay provision that I opined that this section of the law may be preempted by ERISA because of the amount of interference such a law would cause with the operation of ERISA plans and because such a law would undermine the uniformity goals that ERISA seeks to establish in the area of employee benefits law.
In my alternate reality, Governor Romney recognized the same ERISA issues and is just merely seeking to avoid unnecessary legal challenges to the bill in the future. OK, I'm just a little delusional.
In any event, all this probably means very little for how the bill will look when eventually enacted since the largely Democratic Massachusetts legislature will most likely override Governor Romney's changes.
April 13, 2006
Court Addresses Breadth of Agreement to Arbitrate “Any [Employment] Disputes”
Thomas Cox signed an arbitration agreement with his employer Ocean View Hotel Corp. (dba Radisson Waikiki Prince Kuhio Hotel, pictured at left). Two years later, his supervisor accused him of having a “secret relationship” with a subordinate, and ordered that the relationship stop. A year later, perceiving the relationship to have continued, the supervisor again ordered it to stop, and warned Cox in writing that continuing the relationship “may ultimately be deemed an act of subordination and grounds for immediate termination of employment.”
Cox responded by sending Ocean View a letter complaining of discrimination and requesting arbitration pursuant to the arbitrator agreement. Ocean View refused. Cox then sued for sex discrimination and harassment and for retaliation. Ocean View moved to compel arbitration. At issue was whether Ocean View’s initial refusal to arbitrate foreclosed its later motion to compel.
Ocean View argued that it did not because Cox did not have a ripe claim for arbitration when he filed his arbitration demand – because Ocean View had taken no “tangible employment action,” Cox had no arbitral claim. The court disagreed. While an arbitral claim might not have arisen if Cox “did not like the color of the walls of his office, or because he thought the cafeteria’s food was a bit bland,” the court held that, just as an employee need not wait until termination to file a discrimination claim, Cox did not have to wait until termination to file a claim under his arbitration agreement.
The court therefore found that Ocean View had breached the arbitration agreement. Because Ocean View had breached the arbitration agreement, the court held that it had waived its right to enforce the arbitration agreement in Cox’s suit. The court therefore denied Ocean View’s motion to compel arbitration.
Wal-Mart Releases Employment Diversity Numbers
As part of its national public relations campaign to rid itself of the perception of being an employee unfriendly company, Wal-Mart has released its employment diversity numbers to show what percentage of it workforce is minority or female, and how many of these individuals hold supervisory or higher positions in the company.
These numbers show that:
32 percent of the 1.34 million Wal-Mart employees in the United States were minorities or women. That level varied by occupational group, including 21 percent of top officers and managers, 20 percent of professionals and 33 percent of sales workers.
Although these numbers are closer to not good than great, it is hard to say what these figures actually mean since there are no previous figures with which to compare them and it is not clear from these numbers how many workers are minority versus women with regard to both rank and file positions and higher positions.
To me, the verdict is still out whether Wal-Mart is doing enough to increase diversity and prevent discrimination in the workplace and I look forward to not only more transparent numbers being produced next year, but also for disclourses to be made about these same figures from 5, 10, and 20 years ago.
Only then will we get a better picture of whether Wal-Mart is truly making progress in these crucial areas.
Study: Gender Gap Continues in University Pay
Inside Higher Ed reports today on a new study which examines the continuing gender gap in pay between male and female university and college professors.
Although most agree that there does remain a gender gap in pay, some of have argued that this gap is not based primarily on gender bias, but instead can be adequately explained by the different level of experiences that professors have.
Apparently not so according to a study by Paul D. Umbach, an assistant professor of higher education at the University of Iowa, which he presented to the annual meeting of the American Educational Research Association this week.
According to Umbach's findings:
Leaving all factors out, the mean salary for women in the professoriate was 21.8 percent less than that for men. Add all the possible explanations and their impact, and the gap shrinks to 6.8 percent.
While that is much smaller than the original figure, Umbach stressed that the gap matters — especially since it persists after all the other explanations have been accounted for. “It’s still substantial and it’s still unexplained,” he said.
Umbach based his analysis on a dataset of 2,758 faculty members from 79 disciplines who reported information about themselves in the 1999 National Study of Postsecondary Faculty. He focused only on research universities and on full-time, tenured or tenure-track faculty members.
Another disturbing indication that even in the "enlightened" context of the university, there remains much work to do on an issue that some might have thought was just part of some darker past.
Religious Accommodation of Off-Duty Conduct
Here is an interesting story from The Detroit News about a TV Anchorman-turned-part time evangelist who wants to preach the gospel on a unaffiliated radio station while not doing his primary television job. The TV station has refused him permission, relying upon a contract which the TV anchor signed saying that the TV station has the exclusive rights to his talents and that he does not have the ability to moonlight with a competing broadcast company.
The TV anchor has now filed a charge of discrimination with the EEOC, alleging religious discrimination by his employer. The claim appears to be that the TV station should have to accommodate his religious beliefs by permitting him to engage in evangelical activities while not at work with another broadcast outlet.
I don't think this claim has much of a chance. First of all, the TV station is clearly permitted to have a strong moonlighting provision which does not permit its on-air personalities to work in other venues while not working for them. Even without the contract, this can be seen as a version of the common law duty of loyalty that employees have to their employers while employed by them.
Moreover, to the extent that this type of moonlighting language appears in all employees of this type contracts with the station, there really is no disparate treatment based on religion.
And even if you tried to argue that the TV anchor's religious beliefs were not being properly accommodated under Section 701(j) of Title VII, I would not think the employee would win under this test either. As an initial matter, since the Hardison case, the duty to accommodate has been a de minimis one and pretty much any type of hardship an accommodation might cause, an employer does not have to accommodate.
Moreover, and perhaps even more significantly, because this conduct relates to off-duty conduct, I think the duty to accommodate is more attenuated. This is because his actual work for which he was hired to do is not interfering in any way with his ability to practice his religion in the way he see fits during the work day.
DOL Offers Database of Potential Employees
The U.S. Department of Labor's Office of Disability Employment Policy (ODEP) is now offering a free database of 1,900 qualified college students and recent graduates with disabilities who seek summer and full-time employment. This CD-ROM database can be used by employers to search from a pool of pre-screened applicants from over 45 states and territories who have skills in disciplines ranging from computer sciences and business to communications, engineering, office administration and more. Information about WRP is available at Worforce Recruitment Program. To request a free copy of the entire WRP database on CD-ROM, email a request to email@example.com.
April 12, 2006
What Exactly is a Blog Carnival, You Ask?
Well, a blog carnival takes place at a given blog during different times on a given topic and then that blog is responsible for gathering together various posts from different blogs on that given topic. Many times, the blog carnival host is very original in making the posts part of a larger them (see this take off on the Passover Plagues by this week's Carnival on Education by the Magic School Bus).
The Blog Carnival website acts as a central clearinghouse for much blog carnival information and blog authors can use a submission form to submit their various posts to as many blog carnival hosts as they wish.
So, for instance, in the blawg world, there is a weekly Carnival called the Blawg Review, and every week a different blog host takes readers through a different part of the legal blogosphere. This week, for instance, you can find the Blawg Review at f/k/a.....
Of course, the types of blog carnivals span all possible subject matters and some are a round-up of the best blog postings during a given week. One such MVP carnival is call the Carnival of the Vanities and this week it is being hosted by Free Money Finance. You might note that my recent entry on GM and ERISA Stock Drop Litigation can be found there.
In any event, for a nice overview of all the different bog carnivals, check out the Blog Carnival website, and heck, it the spirits moves you, submit an entry for one of the carnivals.
Kessler on Paid Family Leave in American Law Schools
Laura Kessler (Utah) has posted on SSRN: Paid Family Leave in American Law Schools: Findings and Open Questions.
From the abstract:
There exists a substantial literature on the status of women in the legal profession, including studies on women students' experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools.
This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law schools and receiving a paid family leave. Third, although many law schools provide paid family leave, most leaves are granted on a case-by-case basis.
This study stands to benefit a number of constituencies within the legal academy, including individual faculty members, faculties developing leave policies, appointments committees, and job candidates. In addition to presenting survey findings for a representative sample of approximately 35 law schools, this study raises a number of open empirical and theoretical questions for future research.
Definitely, a timely and important topic. You can download this noteworthy piece here.
ABA Section on Labor & Employment Law Calls for Participation
We are the Secretary and Secretary-Elect of the Section on Labor Employment Law of the American Bar Association. We have been fortunate to enjoy the participation of a small number of your law school colleagues among our 22,000 members. We are writing in the hope of convincing you to become more involved in the Section's activities.
Law professors can play an important part in the work of our Section by participating in our midwinter meetings and presenting papers at those gatherings. These meetings, which take place in attractive locales in warm climes, provide a wonderful opportunity for law professors to provide a policy perspective to the debates engaged in by the practitioners. We will be pleased to consider any papers you present at these meetings for publication in the Section's journal, The Labor Lawyer.
These midwinter meetings help us appreciate the kinds of issues that make up the work day for labor and employment lawyers, and provide insights for developing new and relevant teaching materials, as well as topics for scholarship. A better awareness of the scope of labor and employment law as it is practiced today is a vital tool in helping convince our law schools to expand hiring and course offerings in this important area.
The Section will normally waive fees for academics who attend these midwinter meetings, and some of the subcommittees will consider additional reimbursement for academic participants if their law schools do not cover the expenses. There are additional opportunities to participate in Section presentations at the annual ABA meetings.
Law professors can also play an important part in the stimulating educational conferences that are now put on through CLE teleconferences. To view the course offerings, go to www.Abanet.org/labor.
We would like to form a small task force to help us utilize the talents of law professors to enhance the work of our Section. If you are willing to help us in this endeavor, which will not require a great deal of your time, please contact either of us at the phone numbers or email addresses listed below. If you are not interested in working on the task force, we hope you ll let us know of your interest in participating in midwinter meetings so we can put you in touch with the committees whose meetings best match your interests. We also hope you will consider joining the Section and helping us build stronger bridges between the academic community and the practicing bar.
Thanks very much. We look forward to hearing from you and seeing you at future Section conferences.
Robert J. Rabin
Syracuse University College of Law
Christine G. Cooper
Loyola University, Chicago
DOL Releases Retirement Planning Guide for Hispanic-Americans
The U.S. Department of Labor today released Su Dinero Y Futuro Economico: Una Guia Para Ahorrar, a resource to help Hispanic Americans plan, save and invest for a secure retirement. The publication is the Spanish-language version of the DOL's popular Savings Fitness: A Guide to Your Money and Your Future.
The Department of Labor is hosting a series of free seminars throughout the country, including:
- Voluntary Fiduciary Correction Workshop, April 20 in San Diego, April 26 in Nashville, May 16 in Sacramento, and August 22 in Charlotte.
- COBRA Compliance Workshop, April 26 in Boston.
- Employers' Compliance Assistance Forum, April 27 in Denver and May 16 in Houston.
- HIPAA Health Benefits Laws: Compliance Assistance Seminar, May 9-10 in Alubquerque and May 24-25 in Hartford.
- Knowing Your Fiduciary Responsibilities, May 11 in Los Angeles.
April 11, 2006
The Immigration Rallies and Worker Absenteeism
Further Update (4/15): The New York Times has an article today which suggests that many more employers have terminated their employees (perhaps many hundreds or even thousands) for taking part in immigration rallies, though the employees mentioned in the last update were offered their jobs back. Both Professors Craver and Smolla are quoted in the piece for the proposition that employees are relatively free legally to take what actions they want against such employees under current law. Although some actions do exist for immigrants to remedy the situation as discussed in the original post, I think by and large they are right that employers in an employment at-will regime and maintaining a uniform attendance policy are legally permitted to terminate these employees. But I still do not see how it is practically in their best interests to do so in most cases.
Update: The Detroit Free Press has a story about an employer firing a number of employees for participating in an immigration rally during their shifts.
One of the angles not significantlly covered about the current wave of immigration rallies is the impact that such rallies are having on the workforces of some employers (story from Market Watch) because of the absenteeism caused by such rallies. The question is: what legal recourse do employers have against workers who take off work to participate in these rallies?
The answer is
probably not much based on they can probably fire them as at-will employees for being absent even in light of some legal considerations mentioned below; though, for practical reasons, it is unclear why employers should want to take any action at all against these employees.
From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.
Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.
Additionally, there might be some employment discrimination-type protection for these workers. Federal and state employment discrimination law protects against both national origin and citizenship discrimination. To the extent that an employer punishes these workers for participating in these immigration rallies, but not other non-immigrant workers who engage in similar rallies or concerted activities, there might be discrimination claims of disparate treatment either under Title VII or the Immigration Reform and Control Act.
Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. Afterall, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers' best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so.
NYC Transit Update: Toussaint to Jail
Well, even though the NYC Transit Strike from this past December has been out the news for a while, it does not mean that those responsible for causing the illegal strike in the first place are off the hook.
In fact, the New York Times is reporting that the head of the Local TWU union, Roger Toussaint, has been sentenced to 10 days in jail and a fined $1,000 for his role in keeping the workers out on strike in contempt of a court order enjoining such actions. Two other union leaders were fined $500 for their actions.
As Martin Luther King Jr. would probably have told Toussaint, sometimes you have to spend a few nights in jail to suffer for your principles. That's the nature of civil disobedience. That all being said, there is a larger issue about whether the New York Taylor Law should be amended to permit such strikes as long as such strikes do not cause substantial harm to the public welfare. As it currently stands, the Taylor Law is one of the most stringent public employee bargaining laws in the country.
And what's the current status of a contract for these same TWU workers in NYC?:
The workers are still without a contract, as a result of the defeat by seven-vote margin of a deal that would have provided wage increases but increased charges for health care.
Late last month, the New York State Public Employment Relations Board ordered that the dispute be settled by binding arbitration. The union has objected to arbitration, saying it might end up with a worse deal than it could bargain for itself.
Something tells me we are not even close to the end of this story yet.
Vive La Workers!
I know my French in the title is not right, but I wanted to express how impressed I am with the power of employees, unions, and students in France when it came to defending their workplace rights against government intrusion.
As you may know, French President Chirac has blinked and rescinded a the law that would have made it easier to fire younger employees in the country.
As I have said before in a previous post on this topic, it is hard to imagine American workers, unions, and students being so passionate about this issue in our country of the at-will employee.
Nevertheless, the recent upsurge in demonstrations concerning the immigration laws being considered by Congress does seem to suggest there is a vast energy source that is yet to have been tapped by employee interest groups seeking workplace changes in the United States..