January 21, 2006
Pepsi Settles Sexual Harassment Suit
PepsiAmericas Inc. has agreed to pay $400,000 to settle charges that a former dispatcher at its South Side plant was sexually harassed and then fired after she complained about her alleged treatment.
The settlement, announced Friday by the Equal Employment Opportunity Commission's office in Chicago, came shortly before the 3-year-old case was set to go to trial.
PepsiAmericas denied any wrongdoing and "continues to maintain it did nothing wrong," Jeffrey Torosian, Pepsi's outside counsel, said Friday, but the company decided it was in its best interests to settle.
The firm agreed to pay former dispatcher Renaee Henry $43,000 in back pay and $132,000 in compensatory damages, according to a consent decree filed Jan. 18 in U.S. District Court. Her attorney, Fern N. Trevino, who intervened in the case and worked with EEOC lawyers, will receive $225,000 in fees.
Pepsi agreed to provide training for employees at its plant at 1400 W. 35th St. and to report any future complaints.
"This was a really egregious case," said EEOC attorney June Wallace Calhoun, adding that the settlement "sends a message to companies that they have to take complaints seriously and they cannot retaliate."
Does any one really believe after a settlement of this size that this is just a "nuisance" payment on the part of Pepsi and they did nothing wrong?
Also, I'm all for fair compensation for plaintiff attorneys, but at the EEOC level, could the plaintiff's attorney really have incurred $75,000 a year in legal fees, in what the EEOC itself called a pretty egregious (and, therefore, straightforward) case of sexual harassment? I am duly corrected. See the Plaintiff attorney's explanation in the comments which explains why the case led to such a high attorney fee amount.
OSHA To Resume Gulf-Coast Enforcement
OSHA announced in a press release yesterday that it will resume regular enforcement of job safety and health standards throughout most of U.S. Gulf Coast. As of Jan. 25, normal enforcement will be conducted throughout Florida
and Alabama, in Mississippi north of Interstate 10, and in Louisiana
except in seven parishes in and around New Orleans.
Following Hurricanes Katrina, Rita and Wilma, OSHA exempted a number of counties and parishes in Florida, Alabama, Mississippi and Louisiana from regular enforcement status. OSHA limited inspections to cases involving fatalities, catastrophic accidents or complaints.
Declining Union Membership Levels Off
According to a recent survey, the number of workers who are unionized in this country stands at 12.5% or approximately 16 million individuals. According to this report by KCTV News in Kansas City, minorities, men, and public sector workers are more likely to be unionized than whites, women, and private sector employees.
James Hoffa, President of the Teamsters Union is quoted as saying that, "hemorrhaging of union membership" has slowed, but a worker's right to
join a union has been "continually eroded."
In 1983, union membership stood at 20% of the population.
January 20, 2006
Breaking: NYC Transit Workers Reject Contract By 7 Votes
From the New York Times:
In an extraordinarily close vote, the New York City transit workers' union today rejected the contract settlement its leaders reached last month with the Metropolitan Transportation Authority, scuttling the deal that ended a three-day citywide strike and raising anew the prospect of continued labor unrest.
Of 22,461 votes cast by the deadline at noon today, 11,227 workers voted to ratify the contract and 11,234 voted to reject it, a margin of just 7 votes - or 0.0003 percent. The rejection was a stunning defeat for Roger Toussaint, the president of Local 100 of the Transport Workers Union, which represents 33,700 subway and bus workers at the authority.
Mr. Toussaint had urged his membership to accept the agreement.
The decision leaves open several possibilities, including that of another walkout. Negotiators from both sides might resume direct bargaining or call for mediation, but both approaches might be fruitless because the authority is unlikely to offer new concessions.
What Would Hermione Say?: Wiccan Bus Driver Fired
WITCH WAY. A Princeton, Minnesota, school bus driver
claims she was fired from her job for being a witch -
and no, not because she was mean to the children; being
a witch is her religious belief.
According to a KSTP.com news report, Julie Carpenter said
she never had a problem with her job before she mentioned
last week that she was a witch (but not to the children on
her bus). Carpenter is the wife of Jonathon Sharkey, a
“vampire” who is campaigning for governor of the state.
Said Sharkey (and I'm not kidding about this): "I think this was a witch hunt."
The rest of this spooky story can be found here.
Placing Performance Evaluations On-Line?
Many of us who teach in higher education for a living are used to having our students fill out evaluations about our teaching qualities at the end of semester. And usually, these evaluations range from the very complimentary, to the apathetic, to the equivalent of giving you the middle finger.
In any event, many schools are now in the process of deciding whether such on-line evaluations of professors should be made available to the public. And before you think, "Well, of course they should," think about how performance evaluations are treated in the non-academic workplace. Generally, such evaluations are kept for only those who have the right to know such information such as human resources, your supervsior, etc. But certainly, your co-workers and interested third parties don't have free rein.
In any event, this all comes up because at Northwestern Univ. in Illinois there is a move afoot to open professor evaluations to the public. The article from Inside Higher Ed is available here.
My take? I think if professors want to replace true evaluations for those so-called evaluations on ratemyprofessor.com so be it. But I also think there is much mischief that can be done with some seemingly innocuous performance records, as seen by the recent bruhaha over the UCLA alumni group trying to out its "radical" professors by paying students for notes and tape recordings.
Shanor on Pension Equity
Charles Shanor (Emory) is quoted in the 1/16 Wall Street Journal in an article on retired African-American police officers pressing for pension equity. Title VII didn't apply to state and local governments until 1972, said Shanor. "There's a pretty good case to be made for legislative assistance to individuals who were shut out of a public system, even though at the time, the law didn't require inclusion of all races," he said. "In a large sense, it's a moral claim that clearly, if it happened today, would be a legal claim."
Boeing Victorious in Class Action Disparare Impact Case
Weeks after a federal jury ruled that Boeing Co. did not discriminate against thousands of black employees in promotions, the judge in the case handed the airplane maker a victory Tuesday in a separate but related decision.
On Dec. 21, a jury rejected the plaintiffs' class-action claim that they had been victims of "disparate treatment," or intentional discrimination.
In a ruling released late Tuesday, U.S. District Judge Marsha Pechman said the same plaintiffs - about 4,200 salaried workers - failed to prove that Boeing's promotion policies unintentionally hurt them.
Pechman said the plaintiffs did not prove that Boeing's decision-making system for promotions was "undisciplined." She noted that Boeing had written guidelines for promoting employees, and policies for challenging the denial of a promotion to the Equal Employment Opportunity Commission.
Pechman also said Boeing could not be faulted for not requiring managers to identify the questions they'll ask of candidates before interviewing them and to ask the same set of questions of all candidates for a promotion.
Interestingly, the coourt only heard the case after the 9th Circuit threw out a $7.3 million settlement between the company and the class "in April 2003, agreeing with a minority of the class members that the payout was inadequate and attorneys were being paid too much."
January 19, 2006
Just a Tad Redundant: More Bad News for Wal-Mart on the Employment Front
According to BeneBlog, in Frank Lupiani v Wal-Mart Stores, No. 04-1392 (8th Cir. 1/19/06), "[t]he 8th Circuit Court of Appeals reversed a district court’s
dismissal of an ERISA lawsuit [against Wal-Mart],
remanding the case for further proceedings on the suit’s claims."
BeneBlog goes on to the explain the case this way:
The dispute arose in connection with a unionization attempt by Wal-Mart employees. The union election was not held as the employees instead brought charges against Wal-Mart before the National Labor Relations Board, claiming that unionization efforts were improperly undermined by Wal-Mart’s Union Exclusion Clause in its 401(k) plan, profit-sharing plan, and health and welfare plan.
Settlement discussions involving the NLRB are said to be in progress.
Separately, the employees brought a lawsuit under ERISA, claiming that the plans’ summary plan descriptions (SPDs) were misleading and inaccurate. The plaintiffs also argued that Wal-Mart violated fiduciary duties by placing the union exclusion in Associate Benefit Books.
The District Court for the Western District of Arkansas dismissed the ERISA complaint, concluding that it lacked subject matter jurisdiction due to preemption by the primary jurisdiction of the NLRB under the National Labor Relations Act. The 8th Circuit has reversed that dismissal, finding no conflict between ERISA and NLRA with respect to the claims raised.
The whole entry from BeneBlog can be found here.
"Every [mining] law has been written by the blood of miners"
So says Dennis O'Dell, head of the UMW health and safety division. As a result of this most recent bloodshed, the USA Today reports in this article that:
Labor leaders and regulators are pushing for the nation's first mine-safety reforms in nearly 30 years and hope to nearly quadruple the maximum fine for serious violations in the wake of this month's mine disaster in West Virginia, miners and safety experts said Wednesday.
Unfortunately, it usually takes a tragedy to get any type of increased mine safety protection. The story about how legislation and action only follow tragedy can be found here.
Big Overtime Win for Southern California Residential Care Workers
From PlanSponsor.com from yesterday:
More than 200 health-care workers at 13 Southern California residential care facilities will receive $637,000 in back wages following an investigation by the US Department of Labor's Wage and Hour Division. Investigators alleged that the separate facilities failed to pay overtime when employees worked an aggregate of more than 40 hours at two or more facilities during the same workweek.
The rest of the story is here.
West Virginia Joins Maryland in Proposing a "Walmart Bill"
Business Insurance.com is reporting that:
Following the lead of Maryland, lawmakers in West Virginia have introduced legislation that would require employers with 10,000 or more employees to devote at least 8% of their payroll to employees’ health care costs.
Those employers that don’t meet the 8% threshold would be required to pay the difference to the state’s Medicaid insurance program.
The bill is similar to the Fair Share Health Care Act, also known as the "Wal-Mart bill," that was enacted last week in Maryland following the Legislature’s override of Gov. Robert Ehrlich’s veto of the measure late last year.
The rest of the story here.
How Much Does the Boss Make?
Investors should applaud the SEC's vote [Tuesday] to propose an expansion in disclosure requirements for executive pay. While there is room for reasonable disagreement on the merits of prevailing pay arrangements, there can be little disagreement on the quality of disclosure practices. These are highly inadequate.
Companies have commonly taken a "lawyerly" approach, not disclosing to investors much more than SEC regulations explicitly require. As a result, some information necessary to form a good picture of pay packages isn't disclosed. Other information is disclosed in ways that obfuscate, not inform. Investors shouldn't have to devote significant time and effort to put together a company jigsaw puzzle.
Click here for the rest of the article.
January 18, 2006
Dennis Walsh Recess Appointed to NLRB; Board Back to Full Capacity
From the Labor Law Blog:
On Tuesday, January 17, President Bush recess appointed Dennis P. Walsh to be a Member of the NLRB. The White House's announcement is here.
This recess appointment brings the Board to full strength.
In a previous post, I noted that when Member Kirsanow was recessed appointed, Walsh was not (see here). I guess that oversight has now been corrected.
A Win for Retiree Health Beneficiaries
Courts have always treated retiree health care cases differently depending on whether the case involves a unionized or non-unionized workplace. In short, courts are much more likely to uphold retiree health benefits in the union context. The reason being that under "the 6th Circuit’s 1984 decision in UAW v. Yardman Inc., which characterized retiree benefits as 'status' benefits that carry an inference, barring clear evidence to the contrary, that parties to a collective bargaining agreement intend those benefits to survive the end of the current bargaining cycle."
Yesterday's decision in the case of Yolton v. El Paso Tennessee Pipeline Co., Nos. 04-1182/1818/1821/2492 (6th Cir. 1/17/06), continues the trend of holding employer's to their retiree health benefit promises in the unionized workplace.
The rest of the story is available from BeneBlog.
All cites below are to 8 U. Pa. J. Lab. & Employ. L. (2005):
Jennifer Gordon (left), Law, Lawyers, and Labor: The United Farm Workers’ Legal Strategy in the 1960s and 1970s and the Role of Law in Union Organizing Today, page 1.
Daniel P. O’Gorman (middle), A State of Disarray: The “Knowing and Voluntary” Standard for Releasing Claims Under Title VII of the Civil Rights Act of 1964, page 73.
Robert C. Bird (right), Employment as a Relational Contract, page 149.
Jennifer L. Spiegel, Comment, Employee Driven Health Care: Health Savings Accounts, More Harm Than Good, page 219.
Marcel Quinn, Uniformed Services Employment and Reemployment Rights Act (USERRA)–Broad in Protections, Inadequate in Scope, page 237.
Jason Rubinstein, Casenote, Seniority Systems as a Potential Threat to Equal Employment Opportunity–Harris v. Bekins Van Lines, page 257.
Update on NYU Graduate Student Strike
As students start reporting back to class for the second semester at NYU, graduate students are having to decide whether to report to class or to the picket line. As you may recall, in light of a decision by the NLRB that graduate students at NYU are not statutory employees under the NLRA, the graduate student union has engaged in a strike hoping to get the school to recognize it again (previous posts are here, here, here, and here).
[Graduate Student Organizing Committee ("GSOC")] leaders said that the administration’s declaration that graduate students who remained on strike would lose their stipends scared many students back to class. In the math department, for example, the half-dozen students who did decide to strike all returned last semester, some citing pressure from advisors. Plus, “it’s pretty cold,” said Michael Palm, head of GSOC. Picket lines will be smaller but numerous this semester, focused on trustee and administrative meetings.
Some graduate students spent winter break looking for jobs should their stipends disappear. So far, however, the administration has not made good on its statement in late November that graduate students who stayed on strike through December would lose their stipends. “By the end of the fall semester, grades were coming in at the usual rate,” said John Beckman, an NYU spokesman, who characterized the disturbance as minor. “Therefore, it has not yet been necessary to impose consequences.” Beckman added that, in the new semester, graduate assistants will “either fulfill” their teaching obligations, “or will have to confront the consequences we outlined for this semester,” which include the loss of stipend and teaching assignments, possibly beyond just the spring semester.
I can't say that I'm surprised. Unions, private or public, just do not flourish without the protections afforded by Section 7 of the NLRA and similar state law collective bargaining statutes for public employees.
AALS Annual Meeting at San Francisco Redux?
Having just finished our meeting at the AALS annual conference in Washington D.C. the first week of January, I am sure that many of the law professor readers out there have not given much thought to the next annual meeting, scheduled for San Francisco in January 2007 at the San Francisco Hilton.
As many of you may remember, because of a labor dispute between the Hilton and its labor union representing housekeepers, kitchen staff, and bell-desk staff, many of our numbers did not stay at the Hilton in January 2005 and the Section of Labor Relations and Employment Law (among a number of Sections) held its breakfast and panel at the University of San Francisco Law School.
Well, things have not changed much between Hilton and the union since January 2005. In fact, things might have become worse. And there is every reason to believe that the dispute will be on-going come January 2007. The following article from the WSJ.com makes clear the importance of the AALS having some contingency plan in place if there is an on-going labor dispute:
For the past 19 months, Unite Here and the 14 San Francisco hotels with which it does collective bargaining have fought a bitter battle that started with a strike, turned into a lockout, and was followed by a 60-day cooling-off period that ended last January. Since then, the union -- which represents more than 4,500 hourly workers at the 14 hotels, including housekeepers, kitchen and bell-desk staff -- has waged a campaign to discourage organizations and meeting planners from patronizing them.
[The union] has printed pamphlets, set up a Web site and called members of groups sympathetic to organized labor to help it with the campaign. The San Francisco Convention & Visitors Bureau estimates that since the dispute began, the city's hotels have lost about $50 million in meeting and convention business. The union puts the loss at twice that figure.
In San Francisco, the two sides remain at loggerheads, including over a proposal that appears designed to expand the Unite Here's nationwide influence. The union is pushing its San Francisco hotels to agree to a short-term contract that would end in August, when contracts in several other cities also expire. Hotel operators, who want a contract that extends into 2007, have rejected the notion.
Many Workers, Here and Abroad, on the Move
According to this report cited to by PlanSponsor.com:
Roughly a third (35%) of retail workers say they plan to “shop around” for a new job in 2006, according to a recent CareerBuilder.com survey. Workers cite pay, workload, and career development as the leading factors for their decisions to look for new opportunities this year.
Compensation continues to top the list of retail-worker concerns, with more than half of survey respondents noting that they did not get a raise last year. As a result, the number of retail workers who are dissatisfied with their pay increased to 60%, compared with 54% a year ago.
The rest of this itinerant story can be found here.
Also, on a related note, from Ireland:
IRISH "AYES?" In Europe, Irish employees are among the most likely to actively consider leaving their job, according to Watson Wyatt's European Total Reward Survey, which included nearly 600 employers and over 8,500 employees from 10 European countries. The survey found that 41% of Irish employees are actively considering leaving their employer, 6% higher than the European average.
David Rabban Named Associate Dean at Texas
Professor David Rabban has been named associate dean for academic affairs at The University of Texas School of Law for the spring semester. Rabban will replace Professor Steven Goode, who will become dean ad interim for the School of Law on Feb. 1, 2006, when current Law School Dean William C. Powers Jr., begins his tenure as the university’s president. Rabban has written extensively on labor law topics, though his recent scholarship has veered toward free speech and academic freedom.