Saturday, October 7, 2006
- Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why No Should Not Be the Answer (95).
- Edward A. Zelinsky, Maryland's Wal-Mart Act: Policy and Preemption (90).
- Richard C. Reuben, Democracy and Disute Resolution: Systems Design and the New Workplace (71).
- Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements (67).
- Creola Johnson, Credentialism and the Proliferation of Fake Degrees: The Employer Pretends to Need a Degree; The Employee Pretends to Have One (37).
- David J. Doorey, Neutrality Agreements: Bargaining Freedom of Association in the Shadow of the State (31).
- Lisa B. Bingham, Cynthia J. Hallberlin, & Denise Walker, Dispute Resolution System Design and Justice in Mediation at the Workplace: Purpose Drives Practice (18).
- Terry Carney (photo above), Welfare to Work: Or Work Discipline Revisited (16).
- Holger M. Mueller & Thomas Philippon, Concentrated Ownership and Labor Relations (14).
- Monique Ebell & Christian Haefke, Product Market Regulation and Endogenous Union Formation (14).
- Matt Zwolinski, Sweatshops, Choice, and Exploitation (107).
- Sanford M. Jacoby, Convergence by Design: The Case of CalPERS in Japan (32).
- Monique Ebell & Christian Haefke, Product Market Regulation and Endogenous Union Formation (14).
- David I. Walker, Some Observations on the Stock Options Backdating Scandal of 2006 (266).
- Colleen Medill, Resolving the Judicial Paradox of Equitable Relief Under ERISA Section 502(a)(3) (225).
- Alan D. Jagolinzer, Steven R. Matsunaga, & Eric Yeung, An Analysis of Insiders' Use of Prepaid Variable Forward Transactions (121).
- Edward A. Zelinsky (photo above), Maryland's Wal-Mart Act: Policy and Preemption (90).
- Richard L. Kaplan, Means-Testing Medicare: Retiree Pain for Little Governmental Gain (77).
Friday, October 6, 2006
Clarification/Update: It seems from discussion of this case on the employment discrimination listserv, that it is less about FMLA leave, and more about whether the woman in question could show that the employer's policies concerning seniority have a disparate impact on women (maybe even separate and apart from preganant women as a class). The court found no cognizable disparate impact and I think Cindy Estlund on the listserv makes a strong point that the use of seniority alone should not be considered an unlawful employment practice because of the many advantages that the use of seniority brings to the workplace (including minmizing the use of arbitrary employer discretion) .
But the FMLA comments I made below still beg the question of whether time spent out on FMLA leave can be treated as true time away from work in a hypothetically similar case to this one where maternity leave was at issue. In this regard, see the helpful comment from Labor Lawyer below as to what the FMLA regulations might permit.
Thanks to Pete Lattman at the Wall Street Journal Law Blog for this "Labor Law Roundup" on some interesting and disturbing developments in European gender employment discrimination law:
Europe’s highest court ruled yesterday that women who take maternity leave forfeit the right to earn the same pay as male colleagues who are doing the same job but haven’t taken time off. The significant sexual-discrimination ruling, reports the Times of London, may redefine workplace equality in the EU. A British labor tribunal had ruled in favor of the plaintiff in the case, Bernadette Cadman, a 44-year-old health inspector from Manchester who sued after she realized she was being paid about $24,000 less a year than male colleagues who were doing the same job. But the Court of Justice reversed the decision, which means companies that pay workers based on length of service can legally disregard time taken off to have children. Here’s the ruling.
This result seems inconsistent to me with what the FMLA would require in this country. Although FMLA leave may be paid or unpaid, I am not aware of a court holding that time taken off for FMLA purposes can be substracted from an employee's seniority in order to determine the employee's appropriate wage.
For the usually employee-friendly Europeans, this is a surprising decision and one that fails to understand the importance of having workplace policies and legislation in place to support women seeking to achieve appropriate work/family balances.
En Banc 5th Cir.: Public Employees Wearing "Union Yes" Buttons in Hospital Not Entitled to First Amendment Protections
Howard Bashman of How Appealing pointed me to this interesting Connick/Pickering First Amendment public employee free speech case from the en banc 5th Circuit from yesterday.
At stake in CWA v. Ector County Hosp. Dist., No. 03-50230 (5th Cir. Oct. 5, 2006) (en banc) was whether "blue collar" employees of a public hospital in Texas could be forced to remove their "Union Yes" buttons based on a uniform anti-adornment work rule. In a 13-4 decision, the en banc court found that the Pickering balance of employer and employee interests came out in favor of the employer's "efficiency" concerns and the removal of the button was appropriate.
Here's what Judge Garwood wrote for the majority:
A strong argument can be made that governmental employer genuine and essentially neutral uniform anti-adornment policies, administered without discrimination, applicable only to employees while on duty, will of themselves almost always pass Pickering balancing, as they concern what is essentially a part of the employees’ normal job performance for the employer and at the same time result in only the most minimal intrusion into employee free speech rights, leaving full scope for employee expression on
any subject. Nevertheless, to decide the present case we need not, and do not, resolve the ultimate, across-the-board, merits of such a general argument.
In dissent, Judge Weiner wrote:
The majority, however, appears disinclined to analyze how Herrera’s particular expression
might in reality affect the Hospital’s accomplishment of its principal mission, as contemplated by the Supreme Court in Rankin. Had the majority dutifully conducted such an analysis, it just might have been compelled to conclude that the Hospital’s policy prohibiting items of adornment on uniforms (with notable exceptions, I repeat) was unduly restrictive as applied to Herrera and his “Union Yes” button. Perhaps, then, it was to avoid this troublesome truth that the majority chose to make no personal reference to Herrera (or to the separate subset of maintenance employees) in its evaluation of the competing interests to be balanced. Instead, the majority globally lumps together all “Hospital employees,” as though large segments (maintenance, janitorial, food preparation, clerical) are indistinct from other segments (health care specialists, medical and quasi-medical
employees) for the purpose of assigning relative weights to such interests in the conduct of the Connick/Pickering balancing test. I need not labor longer to demonstrate the obvious flaw in the majority’s approach.
If some out there are wondering why the NLRA does not apply here, it is because the NLRA does not apply to public entities (though it might have been helpful for the Court to consider NLRB policy concerning union buttons and union solicitation in the hospital environment for some guidance). Moreover, Texas actually has a statute that does not allow public sector employees to engage in collective bargaining. The two sides in this case argued over what impact the Texas anti-collective bargaining statute had on the Connick/Pickering analysis, but I think the dissent got it right when it said:
Denied the right to be represented officially by a union in collective bargaining and other labor-relation issues, public sector employees like Herrera would perceive themselves as having a greater need for a strong, collective voice in the arena of public opinion than do employees who can and do have unions as their direct advocates with the general public as well as with their employers. Rather than diminishing the degree of Herrera’s public interest in this organizing effort, this state law prohibition greatly increases the public-interest aspect of Herrera’s expression in support of the organizing campaign here.
Overall, another troubling case which not only dimishes public employees' rights to free expression needlessly (see Ceballos), but simultaneously makes organizing the public workforce that much more difficult in a context where the odds are already heavily stacked against the unions.
Three new employment/labor articles have been posted on SSRN this week. Here are summaries of the abstracts:
- Sara Slinn (left), The Limitations of Pieces of Paper: A Role for Social Science in Labour Law. This article argues that social science research should be given a more prominent role in formulating, applying, and evaluating labour laws. Unlike traditional legal research, which has a limited scope and tends to be based on rhetoric and the adversarial approach, social science research is characterized by systematic observation or experimentation intended to obtain positive knowledge or empirical evidence. I t can therefore provide information that is more accurate and objective than the assumptions, inferences and untested beliefs on which the traditional approach is often founded (for example, those relating to the behaviour of the so-called “normal” or “reasonable” employee when employer unfair labour practices are alleged). The author also provides an introduction to the methods of social science research, both qualitative and quantitative, and illustrates the application of the latter to a labour law question (the effect of statutory “ability to pay” criteria on wage awards in interest arbitration). She notes, however, that social science research has limitations -- for example, it cannot be used to replace the normative or value judgments that inform decisions on the drafting or application of a law.
- Marcia L. McCormick (right), It's About the Relationship: Collaborative Law in the Employment Context. Relationships developed in the workplace, and the employment relationship itself, are an important source of social, emotional, and financial support, much like the like the family relationship. Disruptions in the employment relationship can be devastating for both employees and companies in much the same way as disruptions in the family relationship, and the litigative model of dispute resolution is a poor method for resolving disruptions in both types of relationships. This article argues that the collaborative law approach to dispute resolution, which is non-adversarial and has been in family disputes where maintaining ongoing relationships is important, is applicable to many employment disputes. Although collaborative law will probably not transform labor and employment conflicts the way it has some family law matters, there is, nonetheless, significant value to be gained by adapting it to the employment setting.
- Daniele Marchesani, A New Approach to Fiduciary Duties and Employees: Wrongful Discharge in Violation of Public Policy. According to the shareholder primacy norm, shareholders are the sole beneficiaries of corporate directors’ fiduciary obligations. Some commentators, however, argue that directors should also act as fiduciaries of other constituencies such as employees. This article argues that the wrongful discharge action provides employees with the ability to enforce the fiduciary obligations even under the existing shareholder primacy norm. At-will employees who are terminated as a result of a fiduciary breach should be granted a wrongful discharge right of action. Because the action would arise in tort, it would expose to liability both the employer and the directors who participate in the wrongful discharge. Recognizing such a right of action would help induce corporate directors to account for constituencies such as employees even under the existing shareholder primacy norm.
Thursday, October 5, 2006
The U.S. Department of Labor's Employee Benefits Security Administration (EBSA) today announced the launch of a new interactive Web site to serve as a resource for employers in complying with the various federal health benefit laws. The Health Benefits Advisor is designed to help employers and other plan officials understand their responsibilities in operating group health plans. The site provides information on the:
- Consolidated Omnibus Budget Reconciliation Act (COBRA),
- Health Insurance Portability and Accountability Act (HIPAA),
- Newborns' and Mothers' Health Protection Act,
- Mental Health Parity Act, and
- Women's Health and Cancer Rights Act.
The U.S. Supreme Court has denied Sidley Austin's petition for writ of certiorari in the age discrimination suit being brought against the firm by the Equal Employment Opportunity Commission.
The firm, which is facing allegations it demoted 31 partners in 1999 on the basis of age, had argued for the suit's dismissal on the grounds the EEOC had no authority to seek monetary damages. But that motion was denied by both the Chicago district court hearing the case and the 7th U.S. Circuit Court of Appeals based on the Supreme Court's 2002 ruling in EEOC v. Waffle House, 534 US 279, which said the agency had a statutory right to seek damages separate from any individual's right.
The agency must still show that federal age discrimination law applies to law firm partners who have traditionally been considered employers exempt from such laws. The agency has argued that Sidley's centralized management structure rendered most of its partners employees.
Nicole Porter (St. Louis) has posted on the bepress Legal Respository her new paper entitled: Reasonable Burdens: Resolving the Conflict between Disabled Employees and Their Co-Workers.
Here's the abstract:
This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in US Airways v. Barnett) have weighed in on this debate but their analyses fall short of the ultimate goal of this Article—to achieve equal opportunity for individuals with disabilities without unnecessarily interfering with the rights of other employees.
In order to achieve that goal, this Article proposes a statutory amendment to the reasonable accommodation provision of the ADA. This amendment would make reasonable most accommodations that affect other employees, unless the accommodation results in the termination of another employee. In this way, more productive disabled employees will remain employed, while only placing a reasonable burden on the rest of the workforce.
You can download this inisghtful new contribution to ADA reasonable accommodation law at this link.
Durham Taylor on The Need for Congressional Intervention after Burlington Northern & Santa Fe Railway Co. v. White
Lisa Durham Taylor (John Marshall - Atlanta) has posted on the bepress Legal Repository her new paper entitled: A Vague and Subjective Standard with Impractical Effects: The Need for Congressional Intervention after Burlington Northern & Santa Fe Railway Co. v. White.
Here's the abstract:
The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim.
The Supreme Court sought to resolve this disagreement in June 2006 when it decided Burlington Northern & Santa Fe Railway Co. v. White, but its decision fails to supply a clear, judicially administrable standard by which employers can readily abide. Instead, by focusing its inquiry into the statute’s language and underlying purposes too narrowly, the Court’s decision is plagued by a vague standard with a highly subjective component that insulates employees who engage in protected activity from even the slightest workplace changes. This vague and subjective standard not only lacks sufficient support in the statute but also directly contravenes Title VII’s policies of workplace equality, employer forethought, and management prerogative. Moreover, courts will likely struggle to administer this standard with any substantial degree of consistency, and well-meaning employers will find compliance extremely difficult as a result.
This Article therefore proposes that Congress intervene to correct the problems that the Court’s decision in White creates. Specifically, this Article suggests that Congress amend the anti-retaliation provision so that its language more closely mirrors that found in the statute’s core substantive provision, and the better-developed standards thereunder may control discrimination and retaliation claims alike.
You can download this provocative article on this important area of employment retaliation law at this link.
A recently-decided case describes an employment arbitration clause I haven't seen before. The employment arbitration agreement of All State Home Mortgage provides that if a party to the agreement (meaning, of course, the employee) sues on a claim covered by the arbitration agreement, the court must award the other party the "fees, costs, and expenses associated with filing in court a claim that should [have been] submitted to arbitration, along with costs of transferring the case to arbitration and any associated filing fees."
In the reported case, the employees sued on FLSA claims. The trial court dismissed and ordered the employees to pay these costs and fees. The employees instead appealed to the Sixth Circuit, where the case is still pending. Meanwhile, the employer brought a post-judgment motion asking the trial court to require payment of costs and fees. The trial court held that it lacked jurisdiction to do so while the case was on appeal.
The case is Cook v. All State Home Mortgage, No. 1:06 CV 1206 (9/27/06), 2006 WL 2794702 (Westlaw password required).
More organizations are dedicating senior-level executives to drive diversity initiatives, says Robert Rodriguez in an article picked up by WSJ.com. The biggest driver for higher-level diversity strategy, he writes, is the need to tap the creative, cultural and communicative skills of a variety of employees and to use those skills to improve company policies, products, and customer experiences. For example:
The Latino Employee Network at Frito-Lay, the snack food division of PepsiCo, proved invaluable during the development of Doritos Guacamole Flavored Tortilla Chips. Members of the network, called Adelante, provided feedback on the taste and packaging to help ensure that the product would be regarded as authentic in the Latino community. The Adelante members' insight helped make the guacamole-flavored Doritos one of the most successful new-product launches in the company's history, generating more than $100 million in sales in its first year alone.
For more, see The Big Picture: Diversity Finds Its Place.
Wednesday, October 4, 2006
The LERA-listserv has issued a Call for Session Proposals for the 2008 Labor and Employment Relations Association (LERA) Annual Meeting. The dealine for proposals is January 26, 2007 and the Conference's title is Rebuilding America in a Changing Global Context.
From the listserv email:
The theme for the 60th Annual Meeting of the Labor and Employment Relations Association in January 2008 will be “Rebuilding America in a Changing Global Context.” This theme is appropriate to the ASSA choice of meeting location, namely that the conference will be held in New Orleans, LA, which was recently devastated by hurricane and floods as well as man-made and bureaucratic problems. It will focus on how we can understand and help to rebuild America, its waning infrastructure (both physical and intellectual), its workforce and union movement, its management and manufacturing sector, and its service and public sector, and how this can be done jointly with labor-management cooperation, collective bargaining, and through legal, governmental, entrepreneurial, and other approaches.
We will consider research that has looked at these issues as well as practitioners concerns of how these issues are resolved through alternative dispute resolution, collective bargaining, and legislative responses. This theme encourages multi-disciplinary approaches—business, psychology, sociology, law, engineering, and bio and environmental technology—to dealing with these social, political, and economic problems. We will look at the US as an organism that responds to variety of stimuli.
For more information on proposal requirements and a proposal template, you can visit the LERA website under 2008 Annual Meeting.
In a fitting prelude to the post-meat-market callback season, Joann Lublin writes in the Wall Street Journal on the importance of using the job interview to sell the candidate on the employer -- and not just vice-versa. See A Rude Selection Process Can Mirror Working Conditions.
Tuesday, October 3, 2006
As predicted, the Board has finally come down with its so-called "Kentucky River" cases. (To show just how long this has taken, although this is my third year of teaching, I worked on the General Counsel's amicus brief while I was at the Board. Humorously, the Board had also denied the General Counsel's motion for an extension of time to file the brief.) I've only briefly read the cases, but here are the highlights.
The main case for purposes of precedent is Oakwood Healthcare, Inc. 348 N.L.R.B. No. 37. In Oakwood, the Board (3-2) set forth several definitions under Section 2(11) of the NLRA. First, the majority construed "the term 'assign' to refer to the act
of designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime period),
or giving significant overall duties, i.e., tasks, to an employee. That is, the place, time, and work of an employee
are part of his/her terms and conditions of employment. In the health care setting, the term 'assign'
encompasses the charge nurses’ responsibility to assign nurses and aides to
particular patients." In contrast, the dissent "would limit the phrase 'assign employees”' to a
significant employment decision on the order of determining (1) an employee’s
position with the employer (in most settings, identified by job classification);
(2) designated work site (i.e., facility or departmental unit), or (3) work
hours (i.e., shift). This limited
reading better fits the idea of appointing an employee to a post or duty." In short, the majority includes assigning tasks to employees, while the dissent includes only the assignment of employees to particular jobs or sites.
Second, the majority concluded that "'responsibly to direct' is not limited to department heads as the dissent suggests. The 'department head' may be a person between the personnel manager and the rank and file employee, but he or she is not necessarily the only person between the manager and the employee. If a person on the shop floor has 'men under him,' and if that person decides 'what job shall be undertaken next or who shall do it,' that person is a supervisor, provided that the direction is both 'responsible' (as explained below) and carried out with independent judgment." In order for a direction to be considered "'responsible,' the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly." The dissent would use the General Counsel's recommended definition, under which "[a]n individual responsibly directs with independent judgment within the meaning of Section 2(11) when it is established that the individual: a. has been delegated substantial authority to ensure that a work unit achieves management’s objectives and is thus “in charge”; b. is held accountable for the work of others; and c. exercises significant discretion and judgment in directing his or her work unit. This test differs crucially from the majority’s construction in requiring oversight with respect to a work unit." [emphasis added]
Finally, all 2(11) acts must be made with "independent judgment," which the majority defined as requiring "an individual [to] at minimum act, or
effectively recommend action, free of the control of others and form an opinion
or evaluation by discerning and comparing data." To be made with "independent judgment," an act must also be more than merely "dictated or
controlled by detailed instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in the provisions of a
collective-bargaining agreement." Further, acts of "independent judgment" must "rise above the
merely routine or clerical." The Board was unanimous on this issue with the dissenting stressing that the Supreme Court's definition in Kentucky River was controlling and suggesting that it would differ with the majority in its application.
The scorecard for the cases is as follows. In Oakwood, the Board found that permanent charge nurses "assigned" other nurses with independent judgment under 2(11). However, the employer failed to show that rotating charge nurses were supervisors because they exercised supervisory authority for a substantial portion of their work time. In Golden Crest Healthcare Center, 348 N.L.R.B. No. 39, the Board (3-0) found that the charge nurses neither assigned nor responsibly directed others because they lacked authority to assign and had no accountability in their direction of others. In the final case, Croft Metals, Inc., 348 N.L.R.B. No. 38, the Board (3-0) found that manufacturing lead persons lacked the authority to assign, but did responsibly direct their line and crew members.
My personal take on these cases is that they're not great for unions, but they could have been worse. The sky has been falling in this area for a long time--driven mainly by the courts' repeated rejection of the Board's attempt to classify employees as nonsupervisors--and this is just another piece. The main problem here is the antiquated definition of supervisor in Section 2(11). To the extent that the definition ever made sense, the current economy's stress on more autonomy and skills for all levels of employees makes 2(11) a very poor fit with the NLRA's goal of protecting workers' right to engage in collective action.
Check to the Boards: Rukus Breaks Out Between NHL Players and Its Players' Association Executive Director
Not everyday that this blog gets to report a labor relations story from ESPN.com, but here's an interesting battle between some NHL players on one side and the National Hockey League's Players' Association's executive director and some other NHL players on the other side:
Detroit Red Wings star Chris Chelios and other members of the NHL Players' Association asked a federal court Monday to help them oust the union's executive director and award them millions of dollars in damages.
The lawsuit filed in Chicago said executive director Ted Saskin and others "flouted the constitution and governing law to maintain their control" over the union.
Besides seeking a court order allowing them to remove Saskin, the unhappy members asked for unspecified millions of dollars in damages and punitive damages.
"Unfortunately, this lawsuit has become necessary after months of stonewalling by the union," Chelios said in statement. "On behalf of more than 100 NHL players, we continue to seek full disclosure by the NHLPA of the events leading up to Bob Goodenow's departure and the hijacking of the union by a handful of other players."
The suit spotlighted the events of July 28, 2005, when Goodenow was dismissed with the union agreeing to pay off his contract. The same day, Saskin was hired as executive director "despite the fact that Saskin was never properly nominated for the position by the executive board."
The suit claims the switch of executive directors was done in violation of the union's constitution. It claims that even before then Saskin, previously the association's senior director of business affairs and licensing, had been using NHLPA funds to campaign for the top job.
Wow. Now all we need is some fighting on ice and we can handle all of this in true hockey style.
Congratulations to Seth Harris (NYLS) who received tenure effective this academic year. Before teaching, Professor Harris spent seven years at the United States Department of Labor as a senior advisor to two secretaries of labor. His scholarship focuses on the relationship between economics and labor and employment laws, partcularly the Fair Labor Standards Act, the National Labor Relations Act, the Americans with Disabilities Act, and the Supreme Court’s employment discrimination jurisprudence.
Employees Raise Privacy Claim After Employer Uses Video Surveillance in Attempt to Discover Who Was Downloading Porn
Hillsides Children's Center is a residential facility for abused children. When HIillsides discovered that pornography had been nocturnally downloaded to an office computer, the company set up a motion-activated video surveillance camera in an attempt to discover the identity of the surreptitious downloader. The employer did not inform employees of the video surveillance. Several employees sued for invasion of privacy. A California trial court granted summary judgment for Hillisdes, but a California appellate court reversed. The court found that the employees had an expectation of privacy in the office because one of the employees had used the office to change clothes before going to the gym and because another of the employees had occasionally used the office to partially disrobe to show a co-worker how her figure was recovering after childbirth.
The case is Hernandez v. Hillsides, Inc., No. B 18713 (Sept. 14, 2006).