Saturday, July 8, 2006
A Call for Papers has been issued over the LERA listserv for a special issue of the International Journal of Conflict Management. The topic of the issue will be alternative dispute resolution of workplace conflicts.
Here's an excerpt from the Call for Papers announcement:
Conflicts between employers and employees can take on a variety of forms including lawsuits, informal complaints, grievances, strikes, picketing, etc. In this special issue we explore the many alternative ways that these conflicts can be resolved. These alternative dispute resolution (ADR) procedures may include negotiation, mediation, arbitration, fact-finding, ombudspersons, peer review, and many other combinations or permutations of thereof. This is a broad area and many different perspectives on this issue are welcome.
Important questions that could be addressed include the following: How do participants perceive the effectiveness and/or fairness of ADR systems? How does the use of ADR systems affect the outcomes for employers and employees? What are the contextual factors that explain the adoption of use of these systems? How do ADR systems differ across countries or cultures? Are alternative forms of dispute resolution systems fair at the micro or macro level of analysis? How do justice concepts relate to ADR systems in terms of predicting important outcomes for organizations (e.g., turnover, legal claiming, grievances, recommendation intentions, productive and counterproductive behaviors). What are the legal constraints and implications of the use of these systems? What theories (e.g., neo-institutionalism, cognitive choice, transaction cost economics) can be advanced through the study of these systems?
If you are interested in participating in this Call for Papers, you can receive further information from Richard Posthuma, Editor, International Journal of Conflict Management, College of Business Administration, University of Texas-El Paso, El Paso, TX 79968. You can also email him here.
- Laurence R. Helfer (photo above), Understanding Change in International Organizations: Globalization and Innovation in the ILO (68).
- Mary Catherine Daly & Carole Silver, Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services (59).
- Peer Zumbansen, The Parallel Worlds of Corporate Governance and Labor Law (54).
- Allison Christians, Taxing the Global Worker: Three Spheres of International Social Security Coordination (45).
- David J. Doorey, Who Made That?: Influencing Foreign Labour Practices Through Reflexive Domestic Disclosure Regulation (18).
- Bengt R. Holmstrom, Pay Without Performance and the Managerial Power Hypothesis: A Comment (135).
- Jeremy Telman, The Business Judgment Rule, Disclosure, and Executive Compensation (108).
- Ruth Helman, Craig Copeland, & Jack VanDerhei, Will More of Us Be Working Forever? The 2006 Retirement Confidence Survey (106).
- Chris Armstrong, Alan D. Jagolinzer, & David F. Larcker, Timing of Employee Stock Option Exercises and the Valuation of Stock Option Expense (96).
- Jan Bouwens (left) & Laurence van Lent (right), Performance Measure Properties and the Effects of Incentive Contracts (66).
Friday, July 7, 2006
From the Washington Post today:
The man President Bush chose to oversee federal mine safety laws has not been able to win Senate confirmation but has gone to work anyway at the Labor Department.
The department recently hired Richard Stickler to serve as an adviser on mine safety issues, and he has been on the job a week, Dirk Fillpot, a spokesman for the Mine Safety and Health Administration, said yesterday.
The White House nominated Stickler last year to head the mine agency, which is part of the Labor Department. Senate Democrats have so far blocked his confirmation.
Stickler's critics say the former Pennsylvania mine safety official has not demonstrated adequate concern for safety problems in the mining industry.
Hat Tip: Raw Story
Robert Loblaw at Decision of the Day gives the low-down on an employment discrimination claim brought against former Colorado U.S. Senator Ben Nighthorse Campbell (pictured left).
Not only is this an interesting case because it deals with suing a Member of Congress for employment discrimination, but also because of the legal vehicle that the employee uses in going about suing the Member for age discrimination and retaliation: the Congressional Accountability Act.
Here's how the case stands currently according to Robert:
The district court initially dismissed the suit on jurisdictional grounds, concluding that the speech and debate clause of the Constitution shielded the Nighthorse Campbell from liability. (Why does every member of Congress seem to think that this clause is the equivalent of a get out of jail free card?)
The Tenth Circuit reversed, but the Senator had left office in the meantime, creating the issue for this appeal: what happens to the case after the Congressman leaves office? Does the case proceed, with Congress itself as the defendant, or does the case become moot? The Senator’s Office moved to dismiss on the grounds of mootness, but the district court rejected this argument. The defendants sought interlocutory appeal, but the question will not be resolved any time soon as the Court concludes that it lacks jurisdiction over the appeal. Accordingly, [the employee]’s case will proceed, with Congress as the defendant.
Thursday, July 6, 2006
The Boston Globe the last two days has reported on an interesting story on how a health care advocacy group in Massachusetts, Affordable Care Today (ACT), was considering placing on the Massachusetts ballot this Fall an even more radical health care insurance reform proposal.
As blogged about previously, Massachusetts has already passed legislatively a pay-or-play health care system in which employers either have to provide health care coverage to their employees or contribute to a state fund for uncovered employees. Under this plan:
The state healthcare reform law will expand health insurance to cover the roughly 460,000 Massachusetts residents who lack coverage through a combination of requirements for individuals and businesses. Parts of the new healthcare plan will be in place this year, with the rest scheduled to start July 1, 2007.
As far as the ACT proposal:
The universal healthcare coverage spelled out in [its] potential ballot question would go even further. It would make subsidized premiums available to people with higher incomes, and would pay for additional services with an increase of the cigarette tax and additional contributions by Massachusetts businesses.
Today's Boston Globe, however, reports that ACT officials have decided not to put its proposal on the ballot. The "advocates said they felt the state's healthcare reform law, passed in April, is a way of providing meaningful coverage for those in Massachusetts who don't have health insurance," and will put their resources into seeing that the new law is properly implemented.
As some may already know, there is an on-going budget crisis in the State of New Jersey which has caused the State to shut down many services, including state parks, the Department of Motor Vehicles, and many courts.
Additionally, during the government shut-down in New Jersey, some 45,000 non-essential government employees have been furloughed until the state legislature and governor can work out their budget differences.
One of the most significant ramifications of this budget crisis is that all the Atlantic City casinos had to close yesterday at 8 a.m., costing a loss of some $1.2 million dollars in tax revenue a day to New Jersey.
The reason? It all has to do with who is, and who is not, an essential employee during the government shutdown. Because state gaming officials are considered non-essential employees and they are required to be present under state law for gambling in New Jersey to take place, there cannot be any gambling without these "non-essential" employees.
The consequences of there being no state gaming officials? Harrah's, which runs four casinos in Atlantic City, predicts that an additional 15,000 of its employees will suffer a significant loss in pay as a result of the casinos closing.
Wednesday, July 5, 2006
Thanks to Robert Loblaw and his Decision of the Day Blog for pointing out to me this interesting opinion from the 7th Circuit Court of Appeals (Forrester v. Rauland-Borg Corp., No. 05-4650 (7th Cir. June 29, 2006), in which Judge Posner (pictured left) seeks to establish once and for all what is, and what is not, the appropriate standard for proving discrimination in a Title VII pretext case.
In sum, Robert explains:
[S]everal Seventh Circuit decisions . . . have stated in dicta that pretext can also be proved by showing that the stated [employer] reason [for the adverse employment action] was "insufficient to motivate" the challenged conduct.
Judge Posner believes that this is incorrect, and that this unfortunate dictum has motivated many appeals that are doomed to failure. So he uses this decision affirming summary judgment for the employer as a chance to "lay this dictum to rest" and, hopefully, curb lots of future Title VII appeals. (Not likely.)
Lest you think that Judge Posner is acting out of line in singlehandedly reshaping Seventh Circuit law, he did circulate his draft decision to the rest of the Court and none of his colleagues requested rehearing en banc.
More specifically, Judge Posner writes this about the "insufficient to motivate" standard (also adopted in the 6th Circuit):
It adds nothing to the analysis of pretext but confusion. If the stated reason for the challenged action did not motivate the action, then it was indeed pretextual. If it was insufficient to motivate the action, either this means that it didn’t motivate it, or that it shouldn’t have motivated it.
If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the
dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated
reason, but simply whether the stated reason was his reason: not a good reason, but the true reason.
Splitting hairs or a necessary clarification?
And procedurally, because Judge Posner circulated this opinion prior to publication and apparently no judge in active service voted to hear the case en banc, does that mean that this panel decision now trumps all contrary, previous 7th Circuit panel decisions in this area?
From Up North (via PlanSponsor.com):
"UNDER" OVER. A law set to go into effect in Canada
on December 12, 2006, will make it illegal for employers to mandate retirement for workers age 65 and older. Mandatory retirement policies have been permitted by workplaces under the Ontario Human Rights Code, according to The Ottawa Business Journal.
The Code prohibits discrimination in employment on the basis of age, but defines
age as over 18 and under 65, which allows for policies that require retirement of
workers age 65 and over. Bill 211, the Ending Mandatory Retirement Statute Law
Amendment Act, amends the definition of age in the Code to "an age
that is 18 years or more," according to the news report. The Act
extends protection from discrimination for those over the age of 65.
Looks like Canadian employment discrimination law will now be a lot more like its American counterpart.
Brandi Newman sued Hooters for, among other things, sex discrimination. Hooters moved to dismiss or to stay pending arbitration. Only problem was, Hooters couldn't produce the arbitration agreement Newman purportedly had signed. Hooters argued to the court that since all employees were required to complete an Employment Application and New Hire Packet containing an arbitration agreement, Newman must have signed the arbitration agreement.
The judge didn't buy it.
The case is Newman v. Hooters of America, Inc., No. 8:06-CIV-364EAK-TGW, 2006 WL 1793541 (M.D. Fla. June 28, 2006) (Westlaw password required).
Tuesday, July 4, 2006
From the abstract:
This article provides justifications for "just cause" laws that are constantly under attack in many European countries, while arguing that in some cases amendments might be necessary to ensure the possibility of swift, non-expensive dismissals when a just cause indeed exists. The security provided to employees by "just cause" laws is justified on two main grounds: preventing unnecessary injuries to the social/psychological well-being of workers who depend on a particular relationship for such purposes; and ensuring a fair "price" in terms of security in return for workers' submission to a democratically deficient regime. A number of considerations to the contrary -- the impact on "outsiders", potential inefficiencies and the infringement on employers' autonomy -- are discussed but shown to be rather insignificant in magnitude (with the exception of small employers who are indeed usually excluded from the scope of "just cause" laws).
Occupational Health and Safety Magazine had the following recent update about the success of the DOL's Workforce Recruitment Program for disabled candidates:
Now in its eleventh year, the U.S. Department of Labor's Workforce Recruitment Program announced June 29 that it has placed more than 300 qualified college students and recent graduates with disabilities in summer positions through its free database of 1,900 candidates that was distributed on a compact disc this past spring to public and private sector employers.
"We are very proud of the success we have had with the Workforce Recruitment Program, as a number of those hired have found permanent jobs and careers," said U.S. Secretary of Labor Elaine L. Chao. "This program is an example of what is possible if agencies work together on programs that benefit the nation as well as the people participating."
The database allows employers to search from a pre-screened pool of candidates whose skills range from computer science and business to public relations and office administration. Searches generate candidate profiles, academic and demographic data, and contact information for students.
Employers can request a copy of the Workforce Recruitment Pogram CD-ROM by sending a contact name, company name, address and phone number to email@example.com or by calling (202) 693-7880.
Rip Verkerke (Virginia) has posted on bepress Legal Repository his forthcoming piece entitled, "Wooley v. Hoffman-LaRoche": Finding a Way to Enforce Employee Handbook Promises.
Here's the abstract:
Throughout much of the 20th Century, a virtually irrebuttable presumption that an employment relationship was terminable at will made it surprisingly difficult to enforce even individually negotiated agreements for job security. The New Jersey Supreme Court’s decision in Woolley v. Hoffmann-La Roche, along with several other leading cases, reversed this presumption and embraced the principle that employee handbook statements could create an implied contract.
A close examination of the case reveals the significant doctrinal hurdles that courts had to overcome, the legal fictions that they commonly employed to make handbook provisions enforceable, and the practical consequences of their decisions to enforce. Moreover, the events leading up to Woolley’s termination show how complex and difficult it can be to determine whether just cause for discharge exists. The case also warrants attention because the plaintiff, Richard Woolley, was, by all accounts, an admirable man and his employer, Hoffmann-La Roche, had a reputation both in the local community and in the pharmaceutical industry for treating its employees fairly and well.
Finally, the Woolley court’s opinion, like countless other decisions in this area, relies on what I have elsewhere called a “legal-information-forcing” argument. Under this approach, the court places the burden of clarifying the legal relationship between two contracting parties on the more legally sophisticated party. One might reasonably question whether these statements genuinely prevent employee misperceptions. Nevertheless, the contours of existing doctrine are clear, and a prominent disclaimer ordinarily precludes contractual claims based on employee handbook terms. The Woolley decision thus should be seen as a crucial step along a path from the traditional at-will presumption to a new, and currently stable, contractual equilibrium in which the overwhelming majority of employers contract expressly for an at-will relationship.
You can download this interesting new article here.
Monday, July 3, 2006
- Paul M. Secunda (left), "Arasoi O Mizu Ni Nagasu" or "Let the Dispute Flow to Water": Pedagogical Methods for Teaching Arbitration Law in American and Japanese Law Schools, 21 Ohio St. J. on Disp. Resol. 687 (2006).
- Kimberly A. Yuracko (left-center), Trait Discrimination as Race Discrimination: An Argument About Assimilation, 74 Geo. Wash. L. Rev. 365 (2006).
- Thomas M. Messner, Can Parachurch Organizations Hire and Fire on the Basis of Religion Without Violating Title VII?, 17 U. Fla. J. L. & Pub. Pol. 63 (2006).
- Dana M. Muir (right-center), The U.S. Culture of Employee Ownership and 401(k) Plans, 14 Elder L.J. 1 (2006).
- Eric D. Chason (right), Deferred Compensation Reform: Taxing the Fruit of the Tree in its Proper Season, 67 Ohio St. L.J. 347 (2006).
- Ann R. Rives, You're Not the Boss of Me: A Call for Federal Lifestyle Discrimination Legislation, 74 Geo. Wash. L. Rev. 553 (2006).
- Christina Jordan, The XXX-Files: Cal/OSHA's Regulatory Response to HIV in the Adult Film Industry, 12 Cardozo J. L. & Gender 421 (2005).
- Katie M. Patton, Unfolding Discovery Issues that Plague Sexual Harassment Suits, 57 Hastings L.J. 991 (2006).
- Jeffrey A. Shooman, The Speech of Public Employees Outside the Workplace: Towards a New Framework, 36 Seton Hall L. Rev. 1341 (2006).
- Sarah L. Santos, Judicial Expansion of Fair Labor Standards Act Exemptions to Include Ministerial Employees, 28 W. New Eng. L. Rev. 369 (2006).
Bankruptcy Judge Allan Gropper has ruled that Northwest Airlines may reject its collective bargaining agreement with the Professional Flight Attendants Association. Section 1113 of the Bankruptcy Code permits a debtor to reject a cba if the rejection is, among other things, "necessary" to the debtor's ability to reoganize. Judge Gropper held that Northwest's dire financial situation satisfied this test. He has stayed the order permitting rejection for fourteen days to give the parties time to attempt a settlement. The case is In re Northwest Airlines Corp., ___ B.R. ___, 2006 WL 1776455 (June 29, 2006) (Westlaw passowrd required).
The EEOC will hold its annual federal sector EXCEL Conference from July 24-27 at Caeser's Palace in Las Vegas. Speakers will include EEOC Vice Chair Naomi C. Earp and Commissioner Christine M. Griffin. There will be seven plenary sessions, 52 workshops, and two specialty tracks – one for Hearings Preparation and one for the new Advanced Mediation and Negotiation Skills Track. Participants -- ranging from EEO managers, supervisors and specialists, attorneys, human resource professionals, and union officials -- will receive information on recent developments in employment law and changes in agency procedures. In addition to EEOC officials, the event features speakers from the Department of Homeland Security (DHS), Office of Personnel Management (OPM), Merit Systems Protection Board (MSPB), Federal Labor Relations Authority (FLRA), and the private sector.
Sunday, July 2, 2006
- Katherine V.W.Stone, Legal Protections for Workers in Atypical Employment Relationships (93).
- Jeffrey W. Swanson, Scott Burris, Kathryn Moss, Micael Darren Ullman, & Leah M. Ranney, Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly? (45).
- Susan P. Sturm, The Architecture of Inclusion: Advancing Workplace Equities in Higher Education (44).
- Johan Maes, Luc Sels, & Sophie De Winne, Innovation as a Corporate Entrepreneurial Outcome in Newly Established Firms: A Human Resource-Based View (42).
- N. Jeremi Duru, Fielding a Team for the Fans: The Societal Consequences and Title VII Implications of Race-Considered Roster Construction in Professional Sport (39).
- Katherine Van Wezel Stone, Legal Protections for Workers in Atypical Employment Relationships (97).
- Anita Bernstein, Foreward: What We Talk About When We Talk About Workplace Privacy (27),
- Judy Fudge (photo above), After Industrial Citizenship: Market Citizenship or Citizenship at Work? (17).
- Alan Hyde, What Is Labor Law? (15).