November 18, 2006
Barnes on Geezers Need Not Apply
Pat Barnes has sent us her interesting piece on age discrimination in attorney hiring that appeared in the National Law Journal this past September. Here's a snippet:
Anyone who is over the age of 40 and looking for a job knows that age discrimination exists just as surely as we know that laugh lines are nothing to laugh about.
But don't take our word for it.
Age discrimination is so prevalent that it is possible on any given day to find blatant, unabashed examples of it posted on Internet job search sites-even those that are tailored specifically to attorneys.
If law firms and the attorney search firms they employ are not conscious of age discrimination or simply don't care to refrain from practicing it, what hope is there for industries that hire secretaries, airline pilots or health and sales professionals?
The Internet site Findlaw for Legal Professionals carried an ad from an undisclosed San Francisco law firm seeking an attorney "for general commercial litigation practice. The candidate should be a 2002 or 2003 law school graduate, but more recent classes will be considered." The massive general employment site www.Monster.com yielded the following gem: "Prestigious law firms in Central and Northern New Jersey are looking to hire temporary recent law school graduates with 3-5 years of litigation experience."
Pat makes an important point in this article: it is not OK for legal employers to tailor job advertisements to younger workers when age is completely irrelevant to the actual performance of the job. And I have a feeling that if law firms continue to use the type of advertisement described above, they might be becoming more familiar with the Age Discrimination in Employment Act (ADEA) or parallel state laws.
File Under "Don't Try This At Work": The Naked Pie Prank
I think this is one of those cases that speaks for itself (via WastedBlog and AP):
A naked pie prank has cost a couple of Michigan jail guards their jobs.
Sheriff Larry Richardson has fired two Lenawee County [Michigan] Jail officers for urging an inmate to strip and run nude around his cellblock in exchange for a piece of cherry pie.
Richardson said the guards were eating, when the conversation turned to what a prisoner might do for pie. The inmate said he was willing to streak and was allowed out of his cell. Richardson said the officers considered it a prank.
No criminal charges have been filled against the guards. But their union is challenging the punishment as too severe.
I said I have nothing to add, but if any one has some "trenchant quips," I am more than happy to provide a forum.
November 17, 2006
Miller Appointed to New Professorship and Directorship
Congratulations to Paul Steven Miller (Univ. of Washington) who has recently been appointed Henry M. Jackson Professor of Law and Director of the University of Washington Disability Studies Program.
Paul tells us that the professorship is named for Senator "Scoop" Jackson of Washington State and that the disability studies program will be based in the School of Arts & Sciences. As a result of the directorship, Paul will now have additional responsibilities, in addition to the role that he continues to play at the Law School.
Sounds like Paul is going to be one busy man!
Paul's Flying Solo
Geography and the FMLA
Every semester in my Employer-Employee Relations class, we focus on that provision of the Family and Medical Leave Act (FMLA) that requires a covered employer to have 50 employees within a 75 mile radius. In such discussions, we generally talk about how employees can be aggregated at facilities within the relevant 75-mile distance, but, I have to admit, we have never discussed how you exactly measure that 75 miles.
Well the 10th Circuit now has in the case of Hackworth v. Progressive Casualty Insurance Co, No. 05-6198 (10th Cir. Nov. 14, 2006). In Hackworth, the Court found that the 75 mile rule means "surface" not "linear" as the crow flies miles. This was significant in Hackworth because the surface measurement in that case was 75.6 miles.
Volokh Files Amicus Brief In Supreme Court Union Dues Case
Update: Oral argument is scheduled in the case for January 10, 2007. Other briefs can be found here.
Eugene Volokh of the Volokh Conspiracy has posted on-line the amicus brief he filed with co-counsel on behalf of the American Legislative Exchange Council in the Davenport v. Washington Education Association case on which the United States Supreme Court has granted cert. (previous post about the case here by Jeff Hirsch).
To remind readers, this is a case concerning union dues of public employees in the State of Washington and whether a so-called opt-in mechanism for allowing nonmember union dues to be used for electioneering purposes complies with the First Amendment. The Washington Supreme Court found that such an opt-in provision violated constitutional rights of the union, while Eugene and co-counsel sharply disagree.
Here is some of what Eugene and co-counsel had to say in their amicus brief:
Washington law balances the compulsion to contribute agency shop fees with safeguards to ensure that public employee unions cannot use those compelled contributions for political, nonbargaining activity unless the contributing nonmembers agree. Section 760 protects the nonmembers by providing that, before a union uses those fees to influence an election or to operate a political committee, it must get the nonmembers’ affirmative authorization. The union of course remains free to spend without hindrance every penny of its members’ dues, plus that portion of the agency shop fees not devoted to the excluded political activity.
A union, like any expressive association, has the right to fund political expression out of dues paid by voluntary members and contributions affirmatively authorized by nonmembers. But no association has a First Amendment right to fund election advocacy using money that was coercively extracted from nonmembers who have not affirmatively authorized its expenditure for that purpose. No case from this Court even hints at any such right, and there is no justification for this Court to create such a right now.
Unless state law compelled nonmembers to pay agency shop fees, this case would not exist, as only the voluntary dues of union members would be at issue. Here, however, Washington has decided that its interest in preserving the agency shop did not reach far enough to justify the use of nonmembers’ compelled payments for political purposes without the nonmembers’ express consent. Nothing compelled Washington to allow unions to force payment of agency shop fees at all. Washington surely has the leeway to limit the use of those fees in the way it has here.
This is a short and to-the-point appellate argument, basically arguing that the Constitution sets a floor in requiring an opt-out mechanism for nonmembers of a union who do not want to support political advocacy they do not agree with, but that the First Amendment does not establish a ceiling such that Washington cannot experiment with an opt-in procedure which requires nonmembers to affirmatively signal that they want their union dues used for electioneering purposes.
Whether you agree with this point or not, Eugene's brief is a model of clarity in setting forth the relevant considerations in this case.
The NFLPA and Unions Disciplining of Agents
This post from Rick Karcher at the Sports Law Blog raises some interesting questions about the relationship between a union and those who represent its members. Can a union, in this case the National Football League Players Association (NFLPA), discipline a player's agent for violating its rules of conduct?
Here's Rick's take:
The NFLPA released in a statement:Should the union only get involved when a player (or players) files a grievance against a particular agent? Or should the union also be proactive in disciplining agents even when the players are against it? Mullen notes that many agents have been waiting a long time for Dunn to be suspended. So Dunn's competition is obviously all for it because then there will be a feeding frenzy on all of Dunn's clients, which in and of itself fosters unethical behavior in the form of client solicitation and providing improper inducements. If David Dunn was in fact stealing clients from Leigh Steinberg, should the union be concerned about that behavior or is that something that should just be left for Dunn and Steinberg to resolve between themselves?
"We have six players on our disciplinary committee and a majority of them believe that Dunn's actions violated our agent regulations. The committee is not disciplining Dunn for anything he did in representing Drew Bledsoe, John Lynch, or any of his other active clients. The discipline is, instead, because he, among other things, failed to properly represent a former client and improperly interfered with another agents' clients."
This may be an issue that is unique to sports and entertainment union where agents commonly represent union members.
Because the NFLPA regulates agents on behalf of its players (going so far as making agents pass certifying examinations), and the union is the exclusive representative of the players in all things concerning wages, hours, and terms and conditions of employment, it makes sense to me that the union can discipline an agent that is doing something against its policies, whether or not all players agree with such discipline.
In other words, it would seem that the collective relationship between the union and the players trumps any contrary individual contract that the player has with an agent, such that the union can intervene in that player-agent relationship when the agent is not following the rules of the NFLPA.
For the 150th anniversary of the birth of Louis Brandeis (left), National Workrights Institute Legal Director Jeremy Gruber (right) has written an essay on the life of Justice Brandeis and the important and varied contributions he made to worker’s rights in America. See Louis Brandeis at 150: Democracy and Workers' Rights.
November 16, 2006
Faculty Spotlight: Michael Zimmer
Michael Zimmer (Seton Hall) writes to tell us about some recent and exciting professional news:
I am visiting at Loyola-Chicago this semester. Next semester I am at Michigan State to teach a full semester's course load in 7 weeks. Then, since my wife had a sabbatical, it is on to Italy, Hong Kong, Vienna, Paris and maybe Spain or back to Italy. On March 19, in Modena I will be a principal speaker at the 5th Annual Memorial to Professor Marco Biagi, the Italian labor law professor who was assassinated for proposing changes to Italian labor law.
Mike also points out that all of his co-authors for his new international and comparative labor law book are also invited speakers at the Modena conference, with he and Roger Blanpain (Catholic University of Leuven (Belgium)) kicking it all off.
Lurie on How a Lawsuit Almost Strangled Pensions
Alvin Lurie, Editor of the NYU Review of Employee Benefits and Executive Compensation, has posted on PointofLaw.com his take on Judge Easterbrook's decision for the 7th Circuit in the Cooper cash balance plan conversion case (previous post on that decision here).
Here is the conclusion that Alvin comes to:
Not all is yet settled: there is of course a remote possibility of review by the Supreme Court, and other circuit courts might consider the issue anew. But the strength of the 7th Circuit’s reasoning will probably carry the day.
Whether it will discourage the initiation of suits attacking the operation of plans before the new law's effective date is problematic, particularly in light of a decision in the Southern District of New York decided after the IBM appeal that explicitly rejected the 7th Circuit's opinion. The reasoning was as flawed as that of the lower court in IBM, and is itself a trial court decision. But it will doubtless motivate some litigants to continue to beat the discrimination drum at least until its inevitable appeal to the 2nd Circuit and predictable reversal there.
Businesses planning complex strategies and making long-term promises desperately need certainty about what the law requires of them. Yet our law often withholds from them that certainty. The results—as in this case—can be costly indeed, not for employers alone, but for participants, when the escalating costs of retirement benefits are giving pause to increasing numbers of employers as to whether to provide them at all.
I appreciate's Alvin's perspective, but I think Judge Baer's decision in the J.P. Morgan Chase case for the Southern District of New York has the better argument over Easterbrook. In particular, this passage in J.P. Morgan Chase is persuasive to me:
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.
For a persuasive counter-argument that Cooper was wrongly decided, see Ed Zelinsky's critique of that case at this previous post.
Oral Argument Preview for Ledbetter v. Goodyear Tire
Update: Ross Runkel agrees with my prediction on the outcome of Ledbetter.
The Cornell Law School's Legal Information Institute (LII) has posted this Supreme Court argument preview on the upcoming Title VII Ledbetter case, which is scheduled for oral argument before the Supreme Court on Monday, November 27th.
Here's a taste:
Lilly Ledbetter sued her employer, Goodyear Tire and Rubber Company, under Title VII of the Civil Rights Act of 1964, alleging illegal pay discrimination. Prior to filing suit, Ledbetter filed a complaint with the Equal Employment Opportunity Commission, as required under Title VII, and thereby set the statutory period of her suit to 180 days before she filed the complaint with the Commission. At trial, Ledbetter relied on evidence of allegedly discriminatory salary reviews that occurred before the statutory period to prove that the amount of the paychecks that she received within the statutory period were discriminatorily low. The jury found that Goodyear had paid Ledbetter a lower salary because of unlawful sex discrimination, in violation of Title VII. Goodyear appealed, arguing that Title VII’s statutory time period should limit Ledbetter’s evidence to the two incidents of allegedly discriminatory conduct that occurred within the statutory period. Further, Goodyear argued that it did not illegally discriminate against Ledbetter during either incident. The Eleventh Circuit agreed, and dismissed the case. The Court’s decision in this case will affect employees’ ability to file equal pay claims under Title VII, as well as employers’ ability to defend themselves against such claims.
You can also read about my musings and predictions on Ledbetter at this previous post.
Tirosh on Adjudicating Appearance
Yofi Tirosh, of the College of Management School of Law in Israel, has posted on SSRN her fascinating article Adjudicating Appearance: From Identity to Personhood. She argues that the scholarly and judicial treatment of appearance should focus not on the rights of a minority group, but on the significance of appearance to an individual's personhood. Here's the abstract:
Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience, and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or non-figurative language. My approach can transform the legal discourse from considering identity in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
Key question: did the authors get a HIPAA waiver for posting the hospital bill dated 1942?
November 15, 2006
How many unions are there in the United States? How many of these unions are for relatively small bargaining units of say 200 or less members? Has this changed over time?
The answer is not encouraging for those who support unionization:
Reporting unions 1999 = 30,703
Reporting unions 1999 = 20,242 with membership of 200 or less
Reporting unions 2006 = 25,351
Reporting unions 2006 = 15,269 with membership of 200 or less
A further explanation of this data is available here.
Interestingly, comparing 1999 and 2006, smaller bargaining unit make up a slightly smaller proportion of all unions (66% vs. 60%). Perhaps this trend suggests that it is becoming more difficult to organize smaller companies, even though unionization still remains the norm in many industries with larger employers (i.e., auto industry).
Using PowerPoint in the Classroom
An article in yesterday's Wall Street Journal, Tips for PowerPoint -- Please Spare Us -- contains a point-counterpoint on the (mis)uses of PowerPoint in corporate presentations. Some lament the proliferation of mind-numbing "Death by PowerPoint" presentations; others argue that "slideware doesn't bore people, people bore people." I've had a mixed experience with PowerPoint in the classroom. I tried it several years back in my Civil Procedure class, and both I and my students (judging from the course evaluations) felt it often got in the way of analytical discussions. This year, I re-introduced it, but instead of using it alone, I use it primarily in conjunction with Turning Point's interactive "clicker" technology. An informal survey of my students indicated that they liked this pairing and wish I would use it in the classroom more often.
Any thoughts on the (mis)uses of PowerPoint in the classroom? Comments are welcome.
Justice Thomas Swears in EEOC Folks
Justice Clarence Thomas has just sworn in Naomi C. Earp as EEOC Chair, Leslie E. Silverman as EEOC Vice Chair, and Ronald S. Cooper as EEOC General Counsel. Here's the press release; above is the photo.
Read the Fine Print . . .
. . . when you buy your next car. It seems that Daimler Chrysler has been putting arbitration clauses into its auto sales/lease contracts. See Daimler Chrysler Corp. v. White, 2006 WL 3196841 (Ind. App. 11/2/06) (Westlaw password required).
The AALS Employment Discrimination Law Section Newsletter
I am pleased to provide you, on behalf of the Newsletter Committee of the AALS Section on Employment Discrimination Law, the Annual Newsletter.
In the Newsletter, you will find information about the upcoming AALS Annual Meeting, including details about the Section's joint panel with the ADR Section on "Dispute Resolution in Action: Examining the Reality of Employment Discrimination Cases." There is also information about other panels of interest at the Annual Meeting for labor and employment types, member news to know, articles of note, shared teaching tips, and upcoming events. And for the first time, there is a Top Ten list, reviewing the most important, interesting, and unusual employment discrimination cases of 2006.
Thanks to all who helped to draft the newsletter, including Michelle Travis (San Francisco), Sharona Hoffman (Case Western), Melissa Hart (Colorado), Monique Lillard (Idaho), Richard Carlson (South Texas), Miriam Cherry (Pacific-McGeorge), Scott Moss (Marquette), and Juliet Stumpf (Lewis & Clark).
November 14, 2006
Bagenstos on the New Congress and the ADA
After taking some time off from blogging to do some real law work, Sam Bagenstos (Washington University) has returned to posting pieces on the Disability Law Blog. Of note, yesterday he posted an insightful take on the impact the new Democratic Congress might have on disability law (which, by extension, may have significant ramifications for employment discrimination law) .
Here is some of what Sam has to say:
Even before the elections last week, the momentum was beginning to shift. In late September, Representative Sensenbrenner (then the Chair of the House Judiciary Committee) introduced a bill, cosponsored by Representatives Conyers and Hoyer, that would reverse the Court's definition-of-disability decisions. And in August Senator DeWine, facing a tough reelection fight, introduced a bill that would reverse the Garrett sovereign immunity decision (a bill that was functionally equivalent to a proposal that had been made by Senator Leahy some years back). And my purely impressionistic sense is that many folks in the disability community who had previously feared reopening the ADA had ultimately come to the conclusion that judicial decisions had so hamstrung the statute that taking that course was now worth the risk.
So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it's now quite a lot more likely that some sort of "ADA Restoration Act" will pass -- which isn't to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues. Lots of prominent Republicans are vocal supporters of the ADA (see soon-to-be-former Senator DeWine, above, or Arlen Specter, or the President of the United States), but a lot of the opposition to and criticism of the statute comes from Republicans as well (look at the list of sponsors of the ADA Notification Act). Democrats, by contrast, have been pretty unified on the statute.
The rest of this post goes on to consider specific areas of the disability law that could be modified, including sovereign immunity, attorneys' fees, and the definition of disability. The whole post is a must-read for anyone who is interested in disability law developments.
Those Pesky Younger Bosses
You are not a spring chicken anymore (no, Joe S., I'm not picking on you). Your boss, on the other hand, is. How can a well-meaning older, subordinate employee
kiss up bond with his or her younger boss? Yahoo! Hot Jobs has some tips.
Here's a sampling:
Be an Employee, Not a Parent
It's no secret that your new boss is young enough to be your child. Resist the urge to parent your boss. When asked, provide advice on business-related items only. Keep your suggestions brief, and avoid the trap of saying, "Well, in my experience?," because it might make your young boss feel inadequate.
Advice regarding personal matters, even if requested, should be avoided at all costs. This will help you avoid being viewed as a parental figure.
Manage Your Own Insecurities
Your boss has enough on his or her mind without having to deal with insecure employees. If you don't feel confident about a particular skill, ask for more training. On the other hand, if you happen to have proficiencies in areas needed by the company, gently inform your boss of your expertise.
Respect Communication Differences
Understand your manager's communication style and adapt your style accordingly. As a Baby Boomer, you may prefer to talk by phone or face to face. Most Gen Xers prefer e-mail. If your boss is a Millennial (born after 1980), a quick lesson in text messaging might be in order.
Email? I won't even talk to somebody if they don't first contact me by Treo or Blackberry. And beware of text messaging if you are an employee.
Hat tip: Miriam Cherry