Saturday, January 28, 2006
From "On the Job with Michael Wade" Blog, Michael explains the derivation of these classic, ambiguous responses to employment recommendation requests:
Several years ago, Lehigh University professor Robert J. Thorton developed the Lexicon of Inconspicuously Ambiguous Recommendations (LIAR). Some samples:
- "In my opinion, you will be very fortunate to get this person to work for you."
- "I most enthusiastically recommend this candidate with no qualifications whatsoever."
- "No person would be better for the job."
- "I would urge you to waste no time in making this candidate an offer of employment."
- "I cannot say enough to honestly recommend this person for employment."
Hmmm. With all the recs I do over the year for law students, I could really use some of these!
With pension funds dwindling as retirees enjoy longer, more capable lives, many businesses have opted to freeze their workers' employment status and keep them on the job through their sunset years.
"Under the new approach, our employees gain the advantage of lifelong job security," Hewlett-Packard CEO and president Mark Hurd said. "Even though our workers will no longer be able to collect a pension, they will receive checks as long as they are able to be wheeled into work and punch the clock."
Hewlett-Packard, Verizon, and IBM are just a few of the Fortune 500 companies that are phasing out the retirement option in favor of "indefinite-employment" plans, under which thousands of qualified workers will continue to earn yearly stipends in exchange for work.
"To the list of outmoded and costly business practices such as health insurance, overtime pay, and lunch breaks, add age-based quitting," corporate management consultant Robert Hopgood said. "Post-retirement-age labor is great for companies, and it's a great way for seniors to stay active."
The rest is here.
Hat Tip: Miriam Cherry
Friday, January 27, 2006
The Nellco Repository has posted: Monitoring Employee E-Mail And Internet Usage: Avoiding The Omniscient Electronic Sweatshops: Insights From Europe, by Michael Rustad (Suffolk) (pictured left) and Sandra R. Paulsson (European Parliament).
From the Abstract:
[W]e propose that Congress enact the Electronic Monitoring Act of 2005, which is a proposed statute that will harmonize U.S. workplace monitoring law with European law. The model statute will provide U.S. workers with one-time written [notice,] supplemented by electronic notice of employer monitoring[,] each time an employee boots up her computer. In addition, we propose civil remedies for non-compliance with the statute. The long-term impact of this model statute will be to appropriately balance the employers’ need to monitor with employee privacy. The long-term impact of the statute in the global economy will be to give American companies a competitive edge in cross-border transactions and reduce their liability costs. Our proposed Federal Electronic Monitoring Act is only the first step to harmonizing U.S. employment law with the rights that European employees have in an increasingly borderless global economy.
Download it while it's hot here.
AUTHORITY “FIGURED.” An insurance broker acted as a plan fiduciary when he collected payment from a number of employee health plans and issued the plans fake insurance policies - even though he contended that he did not exercise discretionary control or authority over plan assets, according to a ruling by the US Court of Appeals for the District of Columbia Circuit.
The court held that the broker qualified as an ERISA fiduciary because he exercised authority or control over the disposition of plan assets, even though he arguably lacked discretionary control over the disposition of such assets.
And I'm sure the fact that he "issued the plans fake insurance policies" didn't help his cause either.
The decision in Chao v. Day, D.C. Cir., No. 05-5050, 1/24/06 is here.
All articles below are from 21 The Labor Lawyer (2005).
- Matthew E. Swaya and Stacey R. Eisenstein, Emerging Technology in the Workplace, p. 1.
- Connie N. Bertram and Lesley A. Pate, Sarbanes-Oxley: A New Whistle Stop For Whistleblowers, p. 19.
- Alexia M. Kulwiec, "On the Road Again" (To Organizing): Dana Corp, Metaldyne Corp., and the Board’s Attack on Voluntary Recognition Agreements, p. 37.
- Edward H. Passman and Bryan J. Schwartz, In the Name of Security, Insecurity: The Trend to Diminish Federal Employees’ Rights, p. 57.
- Anna Wermuth, Union’s Gamble Pays Off: In San Manuel Indian Bingo & Casino, The NLRB Breaks the Nation’s Promise and Reverses Decades-Old Precedent to Assert Jurisdiction Over Tribal Enterprises on Indian Reservations, p. 81.
A Comparative Law Analysis of Equal Pay Laws: Canadian "Comparable Worth" vs. American "Equal Pay for Equal Work"
From North of the Border, How Appealing provides us with this interesting insight into Canadian Equal Pay Act law:
"Flight attendants win case against Air Canada": The Toronto Globe and Mail provides a news update that begins, "The Supreme Court of Canada ruled Tuesday that Air Canada's flight attendants can compare their pay with that of pilots and ground crews to determine if they are being discriminated against because of gender." You can access today's ruling of the Supreme Court of Canada at this link.
From the case of Air Canada v. Canada Human Rights Commission (Can. S. Ct., 1/26/06):
The Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”), administered by the Canadian Human Rights Commission, makes it discriminatory for employers to pay different wages for men and women performing work of equal value in the same establishment.
The issue is whether flight attendants, mechanics and pilots belong to the same establishment. If so, the female-dominated jobs of flight attendants can be compared with the male-dominated occupations of mechanics and pilots in order to determine whether women are being unlawfully underpaid, contrary to the pay equity principles in the Act. For the reasons that follow, we conclude that the Federal Court of Appeal correctly held that the “establishment“ includes all three groups. Accordingly, we would dismiss the appeal and remit the matter to the Canadian Human Rights Commission for the continuation of its investigation into whether there is wage discrimination.
I am no scholar on the Equal Pay Act, but, under American law, doesn't the case only arise when an employer pays different wages to employees of the opposite sexes "for equal work on jobs the performance which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Because of the nature of this prima facie case, usually the male and female workers being compared have to be engaged in fairly similar, or the even the exact same type of work, to mee the equal skill, effort, and responsibility factors of the prima facie case.
When, on the other hand, you have three diverse categories of workers - pilots, flight attendants, and mechanics, although they might work in the same establishment and under common labor rules and policies, each of these groups of workers have substantially different skills, use substantially different effort, and certainly have major differences in their overall responsibilities. Indeed, in making any kind of comparison between these three labor groups, a court would have to use a concept like comparable worth to determine whether or not the flight attendants were getting paid in an equitable manner.
Of course, American courts do not use comparable worth principles to determine whether women are getting unequal pay for equal work, but that is what the Canadian court is doing in this case. Indeed, the Canadian law, unlike its American Counterpart, speaks in these words: "it [is] discriminatory for employers to pay different wages for men and women performing work of equal value in the same establishment." (emphasis added). The Canadian emphasis on whether work is being done of equal value smacks of comparable worth, while the American model more closely tracks the similarities in what the jobs entail as far as objective indicia such as, skill, effort, and responsibility. Indeed, the Canadian Supreme Court made this point when in tracing its pay equity law history, it noted: "this limited principle [of equal pay for equal work] was superseded in the current Act, passed in 1977 (S.C. 1976-77, c. 33), which moved to a new paradigm of obliging employers to maintain equal pay for work of equal value." (emphasis in original).
And whereas value in the Canadian sense might mean the value of an individual's work to the larger society, the American version is instead asking a much more narrow question as to whether a man and woman who work the same or similar jobs are being paid the same amount. In short, the Canadian law is outward looking toward society's desires as far as how jobs should be valued. American law looks inward to see whether equal work is being done and, if so, then the women must be paid the equivalent of the man; no more, no less.
I guess at one point American jurisprudence could have gone the comparable worth route too, but it just seems a little speculative when you are trying to judge the value of an airline pilot against the value of a flight attendant. Again, that seems like comparing apples to oranges, In this day and age of male and female pilots and male and female flight attendants, shouldn't the equal pay question be between those who engage in the same to similar work and, then, of course, there would be an issue if two pilots of the opposite sex with the exact same experience, responsibility, etc., did not receive the same remuneration (although even then defendants' have four defenses in these cases even after such a prima facie showing has been made).
In any event, to each their own.
From the New York Times today:
Mayor Michael R. Bloomberg used the first State of the City speech of his new term yesterday to call for a drastic change in the World Trade Center development plan so the project can finally move forward, and he asked unions to accept changes to health insurance and pension benefits, whose costs, he said, "have spiraled out of control."
But the hall, filled with elected officials, community leaders and labor officials, was notably silent when the mayor approached the uncomfortable subject of benefit plans for the municipal unions, though he did so in relatively bland terms. "We will work with labor and legislative leaders on innovative pension modifications for future workers," the mayor said.
The remarks, a month after a bitter transit strike that centered on that very issue, suggested that the mayor would make such demands a centerpiece of upcoming negotiations with the city's unions.
As evidence that labor relations were healthy, Mr. Bloomberg's aides pointed to a kind statement from Dennis Rivera, head of 1199 S.E.I.U. United Healthcare Workers East, who praised a considerably less controversial proposal that the mayor announced yesterday: his plan to launch a public-private task force "that will attack chronic unemployment and poverty in the homes and neighborhoods where the need is greatest."
This Times excerpt presents one optimistic view of the direction in which public labor relations may head this year in NYC. On the other hand, there is word now there is growing animosity again between the TWU and MTA because of the nature of the new contract proposals being considered at the present time. These new proposals are apparently having the effect of causing the parties to draw further away from one another, trusting the other side less as time passes.
My guess is that there will either have to be a mutual agreement among the parties to engage in binding interest arbitration with a panel of arbitrators. But short of that, NYC might want to brace itself yet again for another public transportation strike.
Thursday, January 26, 2006
This article (sub. req.) from The Chronicle of Higher Education by John Gravois provides an update on the NYU Graduate Student strike which suggests the beginning of the end for the strikers. In particular, the Chronicle article observes:
A handful of graduate teaching assistants who are on strike at New York University received letters on Tuesday in which the administration told them they will not be getting teaching assignments or stipends for the next two semesters.
The letters made good on an ultimatum issued last November by the university's president, John E. Sexton, to graduate students who did not show up for their teaching assignments in January.
So far, according to the graduate students' union, only three strikers have received letters. All three teach full courses on their own, rather than leading discussion sections in courses taught by professors.
Stay tuned to see whether the university will up the ante by denying teaching assignment and stipends to those who merely lead classroom discussions. Would such actions by NYU finally rally enough popular support for the Graduate Student Organizing Council to permit them to continue their fight for recognition? I tend to doubt it. Many students seem to have gone on with their lives and the remaining strikers are making a smaller and smaller imprint on the university scene. Next stop: Oblivion.
I feel for these students and what they are trying to do at NYU in bringing some workplace democracy to the university setting, but it is like they are all just blowing against the wind in trying to obtain recognition without any Section 7 organizational, collective bargaining, or mutual aid and protection rights in the offing. If anything, this dispute makes crystal clear why so much is stake when Board Members seeks to characterize one group of workers as employees, on the one hand, and other groups as managers, supervisors, students, or any other group that does not get the full panopoly of Section 7 rights, on the other hand.
It does appear that an increasing amount of the important battles to be contested between labor and management in the coming years are these very threshhold definitional issues under Section 2 of the Act which will either go a long way in diminishing union numbers or, with some luck, and a quick change to a Democrat Board in 2008, may lead to the rejuvenation of the labor movement with larger groups of workers being properly characterized as statutory employees under the NLRA.
Employee resigned his job when he twice said "I'm out of here" and left soon after, where it is usual in paperboard packaging industry for production line workers to resign jobs verbally, they need not use word quit or resign, and he was warned that if he walked out these doors, "there's no turning back" (H. Moore, Smurfit-Stone Container Corp. and Teamsters).
Can't help myself: which goes to show you can never go
home back to work again.
From the Law Blog at WSJ.com:
The Financial Times leads with a report that auto-parts maker Delphi is stepping up pressure on trade unions to agree to deep pay cuts. According to the story, the company is set to ask the bankruptcy judge Robert D. Drain to strike down its labor contracts with its 33,000 blue collar workers.
U.S. Secretary of Labor Elaine Chao will speak on two panels on global employment and future job creation at the World Economic Forum in Davos, Switzerland. She will address the topics of trends in future job growth, the skills gap, and the conditions necessary to sustain growth and job creation worldwide in the 21st century.
In Davos, DOL also will "release" (it's available at the link provided here) its Chartbook of International Labor Comparisons: The Americas, Asia and Europe, which provides an overview and comparison of labor market situations globally. The study illustrates global labor market successes and reflects potential challenges for the future workforce. In the U.S., these include balancing worker protections with flexibility and mobility and overcoming the skills gap, one of the biggest workforce challenges facing the U.S.
A federal district court has ordered the Equal Employment Opportunity Commission (EEOC) to pay $1,022,653.69 in attorney’s fees and expenses to a Pasadena immigration law firm it unsuccessfully sued for sexual harassment and pregnancy discrimination.
The award consists of $995,780.72 in attorneys' fees and $26,872.97 in additional expenses.
Ballard, Rosenberg, Golper & Savitt LLC, the firm that represented Robert L. Reeves & Associates in the case, said in a news release that the US District Court Judge Dickran Tevrizian said in his opinion that the lawsuit was "unreasonable, frivolous and without foundation."
Reeves maintained that the EEOC either knew or unreasonably failed to learn that its lawsuit was part of a scheme by two of Reeves' former law associates, Daniel Hanlon and Colin Greene, to destroy Reeves and his firm, according to the release. In 2001, a Los Angeles Superior Court judge found Hanlon and Greene liable to Reeves for interference with contract and prospective economic relations, misappropriation of trade secrets and related claims, and awarded Reeves and his firm a total judgment of nearly $200,000. The award was upheld by the California Supreme Court in 2004.
Just as a side note here, when I practiced employment discrimination law and defended employers during EEOC investigations, many times (not always), the EEOC investigators seemed set on making a cause finding against my clients (without much evidence).
On the other hand, unlike some of the investigators who were not attorneys, when the EEOC attorneys decide to bring a case, they should be more careful in having all their ducks in order. This is not to say that the EEOC won't appeal and have the judgment overturned here, but with an agency that is already stretched so thin, why waste resources on these type of marginal cases with clear red flags?
Wednesday, January 25, 2006
Update: Injuntion Issued Against Sago Mine on Issue of UMWA Representation in
Investigation - Judge Robert E. Maxwell of the U.S District Court for the Northern
District of West Virginia granted an injunction today against a subsidiary of International Coal Group (ICG).
From an unnamed source:
MSHA Pursues Injunction Against International Coal Group after Company Denies Mine Access to UMWA
MSHA filed for an injunction against a subsidiary of International Coal Group today after the company prevented representatives from the United Mine Workers of America (UMWA) from entering the Sago Mine to assist in MSHA's investigation into the Jan. 2 accident there. MSHA recognizes UMWA representatives as a valid miners' representative.
"Some of the Sago miners requested that the United Mine Workers be their representatives for the purposes of this investigation, and they have a right to be there. Together, the state and MSHA made a commitment to the families that we would conduct a fair, open investigation, and we decided we needed to take this extraordinary step to keep that commitment," said Ed Clair, associate solicitor for mine safety and health.
Section 103(f) of the Federal Mine Safety and Health Act of 1977 provides that miners' representatives can accompany MSHA investigators, "during the physical inspection of any coal or other mine … for the purpose of aiding such inspection and to participate in
pre- or post-inspection conferences held at the mine."
From Think Progress:
On Monday, the Bush administration’s top mine safety official, David Dye, appeared before a Senate subcommittee to explain the administration’s response to the Sago mining disaster. Specifically, senators wanted to know why mine safety has been consistently underfunded under President Bush, and why regulations have been rolled back or weakly enforced.
Unfortunately, David Dye has a busy schedule. After an hour of questioning, Dye announced he had “some really pressing matters” to attend to, and asked to leave the hearing. Committee chairman Arlen Specter (R-PA) urged him not to: “Your presence will be required here for at least one more hour.”
But Dye insisted:
We have been diverted, dealing with these matters. We were happy to prepare for the hearing, but we really need to get back and attend to all this. There’s 15,000 mines in the United States, and we’ve got some really pressing matters.
The New York Times describes what occurred next:
After Mr. Specter added, “That’s the committee’s request, but you’re not under subpoena,” Mr. Dye got up and walked out.
“I can’t recollect it ever happening before,” Mr. Specter said of the departure. “We’ll find a way to take appropriate note of it.”
I'll say it again: Unbelievable. What can be more important than telling the representatives of the American people what led to the Sago mine disaster? I hope Sen. Specter is seriously considering subpoenaing Mr. Dye back to testify.
From How Appealing:
"The issue before this Court is one of first impression -- namely, whether Title VII plaintiffs can bring a class action for injunctive or declaratory relief in the same action that seeks compensatory damages under Fed. R. Civ. P. 23(b)(2)."
The foregoing quote comes from Senior Circuit Judge Damon J. Keith's dissenting opinion from a three-judge Sixth Circuit panel's ruling issued [yesterday]. In the conclusion to his dissent, Judge Keith writes, "The majority improperly holds that Title VII plaintiffs will never be able to obtain certification under Fed. R. Civ. P. 23(b)(2) to collectively enforce the rights and remedies under both the 1991 Civil Rights Act, 42 U.S.C. § 1981a, and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e."
The case is Reeb v. Ohio Department of Rehabilitation and Correction, No. 04-3994 (6th Cir. Jan. 24, 2006). From the opinion:
Four named female employees of the Belmont Correctional Institution (“Belmont”), a prison operated by the State of Ohio, filed a class action against Belmont and certain officials under Title VII of the Civil Rights Act of 1964, alleging that female corrections officers have been treated differently from similarly situated male corrections officers and accordingly have been denied promotions, denied leave and overtime, given undesirable
positions, and replaced by men.
The plaintiffs specifically requested money damages and an injunction, though they did not specify the conduct they sought to have enjoined.
Because the district court did not follow our instructions and conduct a “rigorous analysis” of the requirements of Rule 23(a), and because Title VII cases in which plaintiffs seek individual compensatory damages are not appropriately brought as class actions under Rule 23(b)(2) because such individual claims for money damages will always predominate over requested injunctive or declaratory relief, we VACATE the district court’s grant of class certification and REMAND the case to the district court for further proceedings.
This decision is consistent with my understanding of the dichotomy that Federal Rule of Civil Procedure 23(b) sets up for different types of class action certification. The problem with this dichotomy for employment discrimination class actions is that it leaves class plaintiffs between a rock and a hard place.
On the one hand, if you bring a claim for monetary damages for a pattern and practice of unlawful employment discrimination, you cannot use the 23(b)(2) device which is reserved for equitable classes and only permits for incidental monetary damages. This is because due process interests and the 7th Amdt right to jury trial requires an opt-out provision in money damage cases to protect the constitutional rights of individual class members (something 23(b)(3) has, but not 23(b)(2)).
On the other hand, the monetary damage class action under 23(b)(3) requires that common issues of law and fact predominate over non-common issues, but when plaintiffs seek money damages there will inevitably be many non-common issues in especially the damages phase of the trial. Thus, 23(b)(3) certification is also not ideal.
In short, is it time for a special form of class certification for these types of employment discrimination class action claims in which monetary damages are predominant in order to permit vindication of both the public and private interests served by Title VII? Say a 23(b)(4) with more flexibility for employment discrimination plaintiffs to obtain monetary and injunctive relief at the same time?
How Appealing is reporting on a Second Circuit decision in which a female employee refused to give her employer her social security number because she feared identity theft and was consequently fired. The court dismissed the women's federal civil rights claims and constitutional claims.
Here's the blurb from How Appealing:
Meanwhile, the Second Circuit [yesterday] affirmed the dismissal of federal civil rights claims filed by a woman who refused to give her Social Security number to her employer for fear of identity theft and was therefore fired. The appellate court assumed, for purposes of its ruling, that the defendants were state actors and thus addressed the woman's claims on the merits.
Reading the per curiam decision, Cassano v. Carb, No. 04-6712-cv (2nd Cir., Jan. 24, 2006), the plainitff appears to have brought her claims under Sections 1981, 1983, 1985, and 1986, and under privacy rights contained in the Fourth Amendment, and the Equal Protection Clause of the 14th Amdt.
In short order, the court found that as far as the plaintiff's civil right causes of action, employers are required to collect social security numbers for immigration law purposes and an exception exists under the Privacy Act of 1974 to allow for such collection, and, thus, she failed to state a claim upon which relief could be granted.
As far as her constituional claims of privacy and equal protection, the court refused to expand the constituionally right to privacy to include the collection of Social Security numbers and found no equal protection violation since all employees were treated the same, there was no protected class involved, and the employer had a rational basis for collecting the numbers.
According to the AP, tens of thousands of workers have sued IBM claiming that Big Blue failed to pay them overtime premium pay.
From the article:
The suit was filed in U.S. District Court on behalf of three current and former workers, and seeks class-action status to represent computer installers and maintenance workers for IBM throughout the United States.
"They were forced to work overtime without being paid in a manner that is required by the state and federal laws," attorney James Finberg said.
Lawyers said they are seeking millions of dollars in back pay for employees of the world's biggest technology services provider based in Armonk, N.Y. They are also considering punitive damages.
Experts speculated that the practice of not paying overtime to workers who deserve it was widespread in the technology industry.
Interesting article from the New York Times yesterday on how the impending closing of many Ford manufacturing plants, along with other dire economic news for traditional manufacturing outlets, spells a larger shift in the American economy away from lifetime employment.
In "Many Workers, Few Shifts," Jeremy Peters talk to especially veteran workers who are having to cope with these seismic shifts in the national economy. Here are some excerpts from the article:
Dennis Frantz first started to feel uneasy about the future of his plant about two years ago, and that was when Wixom Assembly still had more than one shift and Mr. Frantz still had a job to do.
But workers like Mr. Frantz said they saw the writing on the wall. Ford has since significantly reduced production at the plant, and Mr. Frantz, 61, has gone into the jobs bank, a program that requires Ford to pay workers out of a special fund even if there are no cars for them to build.
The prospect of further cutbacks places programs like the jobs bank at risk when Ford renegotiates its contract with the United Automobile Workers union next year.
"It's just like any other entity - survival of the fittest," said Mr. Drewery, 52, an assembly line worker with Ford since 1988.
For auto workers in Wixom and across the country, the cutbacks at Ford combined with a similar retrenching plan at General Motors signal a new reality - one in which $30-an-hour wages and generous benefits are no longer a guarantee.
James Crawford, 39, a painter at the Wixom plant, started his career with Ford 18 years ago when his father was one of the plant's managers. "When I hired in back in the 80's, I figured I'd have a pretty good life and retire from here."
But this is no longer his father's Ford Motor Company. With his future financial security now in doubt, Mr. Crawford, wearing a black jacket with a United Auto Workers logo on the breast, added: "It's traumatic, really. You don't know what you're going to do or if you have a future."
Traumatic times for these workers, indeed.
The real question is what's going to happen to these workers when Ford and other companies shut down all these plants? Are there enough government retraining programs to go around? If not, it is time for both the federal and state governments to consider redoubling their efforts on the job training and skills front.
In determining whether a non-exempt worker is eligible for overtime, it is important to know which hours spent doing "work" for the employer are compensable, in order to determine whether the employee has worked more than 40 hours in a workweek and, thus, may be eligible for premium overtime payments.
Often, in determining whether off-duty activities are compensable, the court looks to determine for whose benefit the activity was undertaken: the employer or employee. If for the employer's benefit, the time spent doing the activity by the employee is usually considered compensable.
In Sehie v. City of Aurora, No. 04-2308 (7th Cir., Dec. 27, 2005), the Seventh Circuit Court of Appeals determined that mandatory off-duty counseling sessions that the emergency dispatcher employee had to attend as a condition of her employment after leaving work abruptly based on the stress of the work, was compensable work time for purposes of overtime. In particular, the court found that:
Attendance at the sessions was a mandatory condition of Sehie's continued employment. This requirement, combined with the fact that Aurora was short of telecommunications staff, creates a strong inference that the counseling sessions were for Aurora's benefit. In addition, Aurora would not let Sehie see her own therapist, with whom she had a prior medical relationship. We find it odd that Aurora would not let Sehie see her own therapist if Aurora believed that these counseling sessions were for her benefit. Furthermore, instead of permitting Sehie to see her own therapist (presumably at her own cost), Aurora paid for 90 percent of the cost of each counseling session with Dr. Nucci.
OSHA yesterday issued New Guidelines to Help Reduce Motor Vehicle Crashes. "Motor vehicle crashes are costly to employers and employees," said Acting Assistant Secretary of Labor for OSHA Jonathan L. Snare. "This new guidance document will show companies how safe-driving practices and safety-conscious behavior can help employees avoid tragedy."