November 3, 2006
Public Employee Workplace Lesson #89: It Is Never a Good Idea to Give The Bird to the President While Working
Update (11/17): Joe Slater (Toledo) writes with information that the union has now filed a grievance on the bus driver's behalf:
“I’m just amazed at the school district,” Chris Dugovich, president of AFSCME Council 2, tells The Progressive magazine. “It’s very difficult for us to imagine that the severity of the punishment would have been the same if the Congressman had not been involved. She paid the ultimate price, and we think that’s pretty tough.”
Thanks to Alex Long (Oklahoma City) for pointing out to me this public employee case where I think the employee could have chosen a more gentile way of expressing her dislike of the President (MSNBC.com via AP):
A school bus driver fired after she reportedly made an obscene gesture at President Bush has filed a union grievance in an attempt to get her job back.
The 43-year-old driver, whose name was not released, was driving middle school children back to school after a zoo visit on June 16 when the president and Republican Rep. Dave Reichert drove slowly by in a motorcade.
From the bus, the children waved; with the windows down in their car, Bush and Reichert waved back.
That’s when the driver gave the president the finger, according to Reichert and Issaquah superintendent Janet Barry.
“The congressman hadn’t seen it, but the president turned to him and said, ‘That one’s not a fan,”’ said Reichert spokeswoman Kimberly Cadena.
Unlike the Rankin v. McPherson case where the public employee was permitted to say that she wished the next time they shot at President Reagan they got him (the Court read this hyperbolic speech as a way of protesting President Reagan's record on minority rights and welfare policies), I only see one communicative idea being delivered here and I think we are safe in saying it is not Ceballos-like official-capacity speech.
And even if you could make an argument that this somehow symbolizes speech on a matter of public concern (which is far-fetched), such behavior on an employee's part interferes with the reputational/efficiency interests of the employer and would most likely allow the employer to terminate her.
That being said, this is a union grievance, and not a Section 1983 First Amendment case, so the issue is whether the employer had "just cause" to fire her, not whether she formally meets the constitutional test for public employee free expression (although that will probably inform the arbitrator's decision).
And in case you doubt the bus driver might not be reinstated here, I give you the case of the Klan State Trooper in Colorado.
Rohde-Liebenau on Whistleblowing Concepts for the Public Sector: Observations on an International Best Practice
One of the great things about doing a conference like the one I helped to co-organize at Marquette Law School last week is that you end up being contacted by people from not only around the country, but also around the world, about the presentations made at the conference.
Case in point: after reading a description of the Whistle-Blowing Panel we had at Marquette, Bjorn Rohde-Liebenau, of RCC Risk Communications Concepts in Hamburg, Germany, wrote to ask for drafts of the presentations made by Professors Richard Carlson (South Texas), Richard Moberley (Nebraska), and Orly Lobel (San Diego).
In return, Rhode-Liebenau sent back this very interesting piece that he is delivering at the Conference of the Council of Europe later this month concerning whistle-blowing and the Eurpopean Parliament. Here is how he describes the arguments he makes in his work:
My fundamental assumptions (or preliminary findings from my consulting practice and reserach):
- I believe that it is now more important to find ways to motivate the management to listen to whistleblowers. "Protection" (and laws as such don't protect) is always a bit late and therefore less effective - though indispensable as a backstop.
- I see the future in the GCR blending: governance, compliance and risk (management).
I hope you enjoy the piece and please contact Bjorn if you want to discuss his arguments further.
More on Blanpain, Bisom-Rapp, Corbett, Joseph and Zimmer Global Workplace Casebook
Bill Corbett (LSU) writes to tell us that there is now additional information available about his co-authored new casebook on international and comparative labor law: The Global Workplace: International and Comparative Employment Law -- Cases & Materials. We wrote previosly about this first-of-its-kind casebook here.
You can find both this new information about the casebook, as well as ordering information for adoption for next semester, at this link.
LeRoy on Compulsory Labor in a National Emergency
Michael LeRoy (Ilinois) has posted on the bepress Legal Repository his new piece entitled: Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports.
Here's a taste of the abstract:
The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.
How far can the U.S. go in forcing reluctant civilians to perform essential jobs during a national emergency? I explore solutions to this question by hypothesizing a large release of radiation— whether by terror attack, or catastrophic accident, or major earthquake— in a vital Pacific port. These ports have a history of work stoppages that disrupt the nation’s economy. I examine federal government responses if dock workers refused assignments until conditions were safe: (1) The President could declare a national emergency labor dispute under the Taft-Hartley Act, and seek an 80-day back-to-work injunction. (2) Congress could re-enact Section 8 of the War Labor Disputes Act, making it unlawful for dock workers to discontinue production for 30 days and subjecting violators to coercive damages. (3) The president could issue strong executive orders, backed by imprisonment, that regulate employment in ports.
I conclude with a legislative proposal to strengthen individual rights. As my research shows, courts that are presented with national emergency disputes rarely side with the individual who stands in the way of the public’s welfare. Without a more balanced labor policy to address emerging crises, the nation may realize belatedly “that when we allow fundamental freedoms to be sacrificed in the name of real or perceived emergency, we invariably come to regret it.”
This is a timely piece in light of the labor implications of Hurricane Katrina and also sheds light on the often-overlooked national emergency provisions of Taft-Hartley and the West Coast port dispute from a few years back. You can download this piece at this link.
November 2, 2006
The Attack of the Jelly Bellies or "You Gotta Fight, For Your Right . . . To Eat Doughnuts?"
I have written previosuly about obesity regulation in the workplace, but there are some things that are sacred within any police department, and then there are doughnuts. Pity this poor chief of police who sought to attack his doughnut-eating bretheren and paid for it with his job:
Police Chief Paul Goward was tired of looking around his department and seeing blubber hanging over the belts of some of his officers. So he sent out a memo exhorting the "jelly bellies" to shape up.
In the end, the department lost 190 pounds -- all of them belonging to Goward. He was forced out as chief because some of his officers took offense at the memo.
The October 11 memo bruised feelings on the 80-member force, drew at least one anonymous letter of complaint from officers about the chief's management style and made his department the butt of jokes about fat cops and doughnuts.
Well, at least as this post points out, jokes about fat cops and doughnuts are not easing now because the police chief got fired for:
[P]rovid[ing] a list of 10 reasons police officers should be in shape. He said overweight police poorly represent the profession, poop out when chasing suspects and might have to resort to "a higher level of force" if a criminal got the upper hand in a fight. He said out-of-shape cops are a liability to the city and their families.
In fact, the real joke is that this man got terminated for making sensible recommendations about how to improve the police force. Nevertheless, I would think that he would have no First Amendment protection in writing this memo under Ceballos, as this would probably be considered "official-capacity" speech.
No, let me restate what I said before: Ceballos is the REAL joke.
International Portability of Social Security
Allison Christians has just posted Social Security in United States Treaties and Executive Agreements. If you've thought about taking a teaching gig abroad, you'll want to read this. Here's the abstract:
The employee dispatched by her company to work temporarily in international destinations is not a new phenomenon, but social structures between which the worker may move have arguably never been more complex. In a world of social insurance programs that feature broad contribution requirements coupled with limitations on benefits, global workers may be required to contribute in multiple jurisdictions, yet be eligible for benefits in none. Having introduced its own social insurance program in the 1930s when workers were much less likely to be sent on temporary cross-border assignments, the United States social security system has had to adapt to the increasingly international workforce. Adaptation has occurred over the last two decades in the form of coordination of taxes and benefits through treaty-like instruments called executive agreements. However, some matters of social security taxation, like other tax matters, have traditionally been addressed in income tax treaties. This article examines the role of tax treaties and executive agreements in the administration of the United States social security program, discusses some of the conflicts and issues that arise due to the use of multiple and potentially conflicting instruments, and suggests ways in which international coordination of social security could be improved in the United States.
Swift Would Be Ashamed: Satirical Remarks of Public Employees Not Protected First Amendment Speech
Thanks to Robert Loblaw at Decision of the Day for pointing me to this case from the 11th Circuit, Mitchell v. Hillsborough County, No. 05-12207 (11th Cir., Oct. 31, 2006), involving a county employee who made satirical remarks about one of the country commissioners, and got fired for it. Here are a run down of the facts:
Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname "Vagi" or "Gina"?
The 11th Circuit found that Mitchell's speech was not a matter of public concerns, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.
I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don't agree at all that this is not speech on a matter of public concern. As Robert points out, that would be like saying Jonathan Swift's Modest Proposal was really about cannibalism.
One does not need to speak seriously in order to make one's publicly importantly point. Sometime satire is much more powerful and makes that point much more effectively.
Balaban to Travel World in Volunteer Program
Assistant Dean and Director of Career Services Melissa Balaban (U.S.C.) (who began her legal career as an employment discrimination lawyer) will step down from her post in January to embark on a six-month, round-the-world journey of volunteerism and tourism.
Balaban will travel with her husband and two daughters, ages 9 and 13, with stays in Africa, Southeast Asia and Israel. Through the international volunteer organization Cross-Cultural Solutions, the four will first spend a month working in the Kilimanjaro Region of Tanzania, likely caring for infants and children. Their next stop is Trang, Thailand, where they will again be placed as needed by their volunteer group. Following an excursion around Southeast Asia with possible stops in Vietnam, Cambodia, Burma and Bali, the family will spend May and June 2007 in Israel, spending some of that time volunteering on a kibbutz.
Bielby and Coukos on Dualing Statistical Evidence in Employment Discrimination Cases
William Bielby (Penn, Sociology) (love the picture!) and Pamela Coukos (UC-Berkeley, Legal Studies) have posted on the bepress Legal Repository their paper: “Statistical Dueling” with Unconventional Weapons: What Courts Should Know about Experts in Employment Discrimination Class Actions.
Here's the abstract:
When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in systematic gender or racial disparities in pay and promotion. At class certification, plaintiffs have relied in part on statistical analyses of the company’s workforce showing companywide inequality. Defendants have responded with statistical presentations of their own, which frequently demonstrate widely varying outcomes for members of protected groups in different geographic areas of the company. These expert submissions usually suggest either that no problems exist, or that any discrimination is isolated and not attributable to institutional-level bias. In adjudicating between these competing visions, courts must referee what the Second Circuit terms “statistical dueling.”
As we show in this paper, sometimes at least one of the parties is dueling with unconventional weapons. Using simulated data, we show why courts should become more critical of statistical expertise purporting to test for subunit differences, particularly when offered at the class certification phase of the case. Under some circumstances, the statistical approach often used to oppose class certification in employment discrimination litigation is guaranteed to support the defendant's position, regardless of the actual facts of the case. Furthermore, some courts have improperly or unwittingly legitimized the use of this approach, even when it is demonstrably non-probative of the issues before the court. Courts need new ways to think about these problems -- approaches that better reflect the relevant legal framework and statistical principles.
I know when I used to litigate employment discrimination class action cases, the dueling statisticians issue came up all the time and much time and energy was spent figuring out the best way to use such experts in these large cases.
You can download this very practical and highly useful piece at this link.
November 1, 2006
Penn Urges Protection for Undocumented Workers
The University of Pennsylvania Law School's Transnational Legal Clinic, along with the American Civil Liberties Union and the National Employment Law Project, are urging the Inter-American Commission on Human Rights to find the United States in violation of human rights obligations. The groups have filed a petition claiming that the U.S. has failed to protect undocumented workers from exploitation and discrimination in the workplace and that employment and labor protections under state laws, including entitlement to hold an employer responsible for a workplace injury, have not been applied to undocumented workers.
For more, see Penn's press release.
Stabile on the Failure of the Employer-Based Pension System
Susan Stabile (St. John's) has posted on SSRN her forthcoming piece in the Lewis & Clark Law Review: Is it Time to Admit the Failure of an Employer-Based Pension System.
Here is the abstract:
In her contribution to the Twelfth Annual Lewis and Clark Business Law Forum (The Aging of the Baby Boomers and America's Changing Retirement System), Susan Stabile paints a pessimistic picture of the state of retirement security in the United States. She examines two aspects of the failure of an employer-based pension system, focusing first on the problems associated with defined contribution plans such as 401(k) plans, which have become the dominant means by which employers offer their employees pension coverage, and second, on the reality that millions of employees lack any pension coverage at all.
She argues that the failures of the employer-based system can not be rectified by incremental changes and that serious consideration must be given to alternative models of providing Americans with retirement security. Although recognizing that neither of the models she discusses, i.e., the provision of a government pension for everyone and movement to a mandatory employment-based system with more stringent regulation than currently exists, would be politically easy to enact, she argues that some major overhaul is needed if we remain convinced that adequate retirement security is an important social goal.
You can download this thought-provoking piece on the future of the American pension system at this link.
"I'm Not Dead Yet": Southern District of New York Allows Cash Balance Plan Case to Proceed
In writing previously about the 7th Circuit Cooper decision by Judge Easterbrook, I suggested that the case might resolve whether conversions from traditional defined benefit plans to cash balance plans are unlawfully age discriminatory (reminder: this only continues to be an issue for plans in existence prior to enactment of the Pension Protection Act of 2006 which now generally states that such conversions are not age discriminatory).
Well, apparently Judge Baer of the Southern District of New York is not buying the reasoning of Easterbrook's Cooper decision.
Here's what he had to say in partially denying a motion to dismiss in the case of In re J.P. Morgan Chase Cash Balance Litigation, No. 06-732 (S.D.N.Y. Oct. 30, 2006) (thanks to The ERISA Blog for the heads up):
Part of the Seventh Circuit’s decision relied on a finding that “‘benefit accrual’ (for defined-benefit plans) and ‘allocation’ (for defined-contribution plans) both refer to the employer’s contribution.” Id. at 639. Defendants in this case make a similar argument and they argue that Congress was saying the same thing when they used the term “allocation” in one provision and “rate of benefit accrual” in the other. The fact is accrual, using its dictionary meaning and in line with the structure of defined benefit plans, refers to what the employee accumulates (the outputs from the plan) whereas allocation, using its dictionary definition and in line with the structure of defined contribution plans, refers to what an employer puts into the account. As this Circuit has observed, “[w]hen Congress uses particular language in one section of a statute and different language in another, we presume its word choice was intentional.” U.S. v. Peterson, 394 F.3d 98, 107 (2d Cir. 2005). . .
Further, the age discrimination arises because this is a defined benefit plan and older workers accrue their retirement benefits at a slower rate than similarly situated younger workers. As directed by the Supreme Court, my role “is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 126 (1989). That is the province of Congress, and it addressed some of the tensions that arise when the binary statutory framework is applied to cash balance plans at the time they passed the Pension Protection Act of 2006 this summer.
So, in any event, in no sense of the word has Judge Easterbrook's take on cash balance plan conversions won the day and we in fact still might be heading for a Supreme Court show down for these neddlesome cases.
Sixth Circuit Rules EEOC May Proceed With Age Case Against Kentucky Retirement Plan
Judge Karen Nelson Moore, in an en banc Sixth Circuit decision, reversed summary judgment and found that the EEOC had demonstrated that the Kentucky Retirement System Plan "is facially discriminatory on the basis of age." The court found two indicia of discrimination. First, the plan disqualifies employees who are still working from receiving disability retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. Second, the plan calculates disability retirement benefits in a manner that results in an older employee receiving lower monthly benefit payments than an otherwise similarly-situated younger employee.
For the complete decision, see EEOC v. Jefferson County Sheriff's Dept., No. 03-6437 (6th Cir. 10/31/06).
October 31, 2006
Amerigroup Slammed in Whistleblower Case to Tune of Potentially $144 Million
Here's a taste from Yahoo! News via the AP:
Insurance company Amerigroup Corp. and its Illinois affiliate were held liable Monday for what lawyers said ultimately would total $144 million in damages for discriminating against pregnant women.
A federal court jury returned a verdict against the company that specializes in health care for low-income patients calling for $48 million in damages — an amount lawyers said would be tripled under state and federal laws.
Federal and state prosecutors as well as a whistleblower said that while marketing its services in Illinois, Amerigroup avoided pregnant women and others likely to run up high doctor bills.
That cheated the government, which was subsidizing the company to market its services evenly among all low-income patients regardless of whether they were pregnant or had costly illnesses, the attorneys said.
The suit was based on a whistleblower complaint from Cleveland Tyson, a former lobbyist for Amerigroup's Illinois affiliate. Tyson, who was fired in 2002, had lobbied state lawmakers and regulators.
Tyson's attorneys said it was "unclear" why he was fired and Jenkins said it would be improper for the company to comment on personnel matters.
The basic damages awarded by the jury were $48 million. Attorneys said that as a matter of law U.S. District Judge Harry D. Leinenweber would be required to triple the damages to $144 million.
They said the tripling is required under both the federal False Claims Act and the Illinois Whistleblower Act.
The company plans to appeal, but in the meantime you can file this one under the "Corporate Greed Has No Bounds" category.
And yet according to this article in the New York Times, as I write this, corporate America is in the process of trying to dilute whistleblowing and other employee and shareholder protections from such unconscionable corporate conduct.
October 30, 2006
Uniform Underwear Policy to Fight Sexual Harassment
Not from the United States, but close enough (Canada) (via PlanSponsor.com):
The Richmond, British Columbia fire department has barred its men and women frontline firefighters from wearing their own underwear, requiring instead more gender neutral skivvies in an effort to quell sexual harassment complaints.
The mandatory standard underwear will come at a price tag of $16,000 to the city of Richmond, which has agreed to provide six pairs of the Stanfield boxers to each of the city's 215 active firefighters, according to the Toronto Star.
The move by the department was an effort to neutralize the situation when firefighters must remove their clothes before suiting up after a call comes in, the Star reported. The firefighters strip in a common area and the standardized underwear idea came "from a sense in the department" that this was the best approach to the issue, said city official Ted Townsend, according to newspaper.
The decision by the city comes after four female firefighters said they were sexually harassed and harassed in other ways by their male colleagues. One female is suing the city.
Now since most workers in most employment situations don't strip in front of one another, I would not think other employers would have to face this same issue, but one does have to wonder how far an employer can go in dictating what its employees can wear underneath their clothes to work.
For instance, could an employer bar thong underwear because it might be noticeable to other employees and cause inappropriate comments to be made? Seems like this may be an area where privacy rights and employment discrimination laws might potentially be at odds.
Let the great underwear wars of the 21st century begin.
- Christian Dennie, Is Clarett Correct? A Glance at the Purview of the Antitrust Labor Exemption, 6 Tex. Rev. Entertainment & Sports L. 1 (2005).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Law Litigation, 111 Penn St. L. Rev. 137 (2006).
- Kelly Gallagher, Rethinking the Fair Credit Reporting Act: When Requesting Credit Reports for "Employment Purposes" Goes Too Far, 91 Iowa L. Rev. 1593 (2006).
- Evan D.H. White, A Hostile Environment: How the "Severe or Pervasive" Requirement and the Employer's Affirmative Defense Trap Sexual Harassment Plaintiffs in a Catch-22, 47 Boston College L. Rev. 853 (2006).
October 29, 2006
Africa's Exploited Child Laborers
A story like this (from Ghana, Africa) really chills you to the bone. But it reminds me of something that I once read in Barbara Kingsolver's The Poisonwood Bible about how in 1960's Congo, Africa there are really just two types of people: those who need to be carried and those who can walk on their own. Childhood simply does not exist.
Just before 5 a.m., with the sky still dark over Lake Volta, Mark Kwadwo was rousted from his spot on the damp dirt floor. It was time for work.
Shivering in the predawn chill, he helped paddle a canoe a mile out from shore. For five more hours, as his coworkers yanked up a fishing net, inch by inch, Mark bailed water to keep the canoe from swamping.
He last ate the day before. His broken wooden paddle was so heavy he could barely lift it. But he raptly followed each command from Kwadwo Takyi, the powerfully built 31-year-old in the back of the canoe who freely deals out beatings.
“I don’t like it here,” he whispered, out of Mr. Takyi’s earshot.
Mark Kwadwo is 6 years old. About 30 pounds, dressed in a pair of blue and red underpants and a Little Mermaid T-shirt, he looks more like an oversized toddler than a boat hand. He is too little to understand why he has wound up in this fishing village, a two-day trek from his home.
But the three older boys who work with him know why. Like Mark, they are indentured servants, leased by their parents to Mr. Takyi for as little as $20 a year.
Until their servitude ends in three or four years, they are as trapped as the fish in their nets, forced to work up to 14 hours a day, seven days a week, in a trade that even adult fishermen here call punishing and, at times, dangerous.
The International Labor Organization, a United Nations agency, estimates that 1.2 million are sold into servitude every year in an illicit trade that generates as much as $10 billion annually.
Studies show they are most vulnerable in Asia, Latin America and Africa.
As I write this, and listen to my own 5-year-old play a board game with his mother and his little sister, I am forcefully reminded of all that we take for granted in this country of plenty and feel truly helpless in addressing the needs of these brutalized children.