November 25, 2006
Teacher's Religious Preaching Caught on Tape at New Jersey Public School
There ought to be law. Wait, actually there is: religious prayer and preaching by teachers has long been considered a constitutional no-no at public schools (not that it actually stops schools around the region I live in from engaging in such practices).
But here is an interesting story (thanks to David Schraub at The Debate Link for the pointer) about a New Jersey public school student who accused his high school social studies teacher of preaching religion in class. As David point outs, the teacher denied the accusation and the school was ready to believe him until the student produced a tape of the whole interchange (via the Star-Ledger):
Junior Matthew LaClair, 16, said history teacher David Paszkiewicz, who is also a Baptist preacher in town, spent the first week of class lecturing students more about heaven and hell than the colonies and the Constitution.
LaClair said Paszkiewicz told students that if they didn't accept Jesus, "you belong in hell." He also dismissed as unscientific the theories of evolution and the "Big Bang."
Rather than the focus of this story where it should be - on the teacher who violated the Establishment Clause and then out-and-out lied about it - the teacher in question is likely, as another commentator points out in David's post, to gain hero status among certain groups and become a leading speaker on the evils of secular education and so-called "secular humanism."
It all just makes you want to throw up your hands and ask when will such teachers stop thumbing their noses at the Constitution and when will schools start taking the concerns of their students more seriously (sans taping).
Union Plans Targeted Strikes at LAX on Thanksgiving Sunday
Hoping to make a dramatic point by walking out of work during one of the busiest travel days of the year at one of the busiest airports in the country, the Engineers and Architects Association of Los Angeare is planning to have 200 LAX employees walk out of work today. As this UPI report explains:
A disgruntled union plans a one-day walkout at Los Angeles International Airport Sunday, one of the year's busiest travel days.
The Engineers and Architects Association, which represents more than 7,500 city engineers, architects and other professionals, said it was planning small, targeted strikes at different city departments on different days in the weeks ahead, the Los Angeles Times reported Friday. About 200 union members work at LAX.
It does not appear that the union has in the past had the leverage to make that much of an impact on city services, as a similar city-wide two-day workplace action in August did not obtain for the union the wage increases it sought. Indeed, the union has been working without a contract for two years at this point.
Health Care Union Faces Defining Moment in New York
One of the unions in this country which has been able to sustain substantial power throughout even these lean years for the labor movement is 1199 United Healthcare Workers East. The union has a long, well-respected history, including being referred to by Martin Luther King Jr. at one point as "the conscience of the labor movement."
As with everywhere else in the country, these are tough times for hospitals and their workers in the State of New York. This article in today's New York Times highlights some of the challenges that the union and Governor-Elect Spitzer have to face in making health care more affordable and efficient in the state. The union is hoping that it and the new governor are on the same page, but as the article points out, there is a lot that remains to be seen:
Now the governor-elect and the union, led by its longtime president, Dennis Rivera, are on something of a collision course as Mr. Spitzer seeks to overhaul the state’s costly health care system, which is sure to include the closing of several hospitals.
[T]he union is facing a new governor who must grapple with a $2.5 billion deficit next year, one who has promised to increase education financing by billions of dollars, cut the number of uninsured New Yorkers in half and reduce property taxes by $6 billion over three years.
To help pay for all of this, Mr. Spitzer has said he will broadly overhaul the state’s bloated health care system, which soaks up more than a quarter of all state spending; his various proposals could result in cuts of more than $1 billion annually in state and federal funds.
The first flashpoint will come Tuesday, when a special commission appointed by Governor Pataki is to make public its recommendations on hospital closings.
This is one of those stories that definitely has a stay-tuned flavor to it. It will be more than just a little bit interesting to see how this powerful union and the Democratic governor will work together to reform the health care system, while at the same time protecting the rights of hospital and other health-care workers throughout the state.
TV and FLSA Overtime Exemptions
Here's a funny piece from the October Issue of Workforce Magazine Online about how television characters can help one understand the complexities and functional nature of the overtime exemptions under the Fair Labor Standards Act (FLSA).
It comes as a big surprise to many employers when they learn that they are not entirely free to decide which of their employees should be paid set salaries and which should receive wages and overtime. Those decisions are governed by complicated laws that hinge on the details of each individual employee.
The best way to explain the rules is by pointing to specific employees and then describing exactly what about their jobs requires them to be paid salary or overtime. The problem is common frames of reference: Where can you find employees who will be known and recognized beyond their own provincial workplaces?
The answer, of course, is television. Homer Simpson, MacGyver, Dwight Schrute (the weird guy from NBC’s The Office) and other TV characters are better teachers of overtime exemption rules than most wage-and-hour attorneys.
And here's one example from the article:
Executive characters: exempt
Gruff newsman Lou Grant of The Mary Tyler Moore Show is arguably the best example of an exempt manager because that is all you ever saw him doing: managing the plucky reporters of WJM-TV in Minneapolis. He was the quintessential boss, his authority absolute and unquestioned. He also never got his hands dirty doing day-to-day chores that he had employees to take care of, meaning that he was never in danger of spending less than half his time managing.
Enjoy the rest of this highly entertaining, yet informative, article.
British Airways Religious Cross Controversy
A British Airways employee who was required to take off her cross necklace when she went to work has caused a firestorm across England. This is from the Daily Mail:
British Airways backed down over its ban on workers wearing the cross after a hurricane of criticism.
Airline chief Willie Walsh ordered a rethink of the rule that barred check-in worker Nadia Eweida from wearing a tiny cross at work.
The airline had faced four days of angry condemnation from an overwhelming alliance of Cabinet ministers, 100 MPs, 20 Church of England bishops and, finally, the Archbishop of Canterbury. Dr Rowan Williams called its stance 'deeply offensive' and threatened to sell the Church of England's £6.6million holding of BA shares.
The airline had insisted the cross was covered by rules which say jewellery must be worn out of sight, beneath a uniform. But Mr Walsh said it was clear the policy had to change.
Quite a reaction. I am not sure the same thing would happen in this country as far as the extent of the public protest.
However, if this type of ban were instituted by an employer in the United States, it would be fairly difficult for them to show that a religious accommodation of the cross wearing was not possible or that allowing the cross to be worn would cause an undue hardship to their operations.
Of course, there may be a few business that have strict uniform or other appearance rules that may be able to withstand challenge as long as the dress policy were uniformly-applied and it could be shown that it was important to an employer's operation to have such a rule.
November 24, 2006
HHS Asks Employers to Committ to Healthcare Quality and Cost Goals
HR.BLR.com has this story today about how the Department of Health and Human Services (HHS) is asking employers to voluntarily commit to meeting four goals in the area of providing more information on health care costs and quality of services:
HHS Secretary Mike Leavitt says fundamental information about healthcare quality and costs of services is largely unavailable today to consumers, to payers, and to providers alike. Without this information, it is difficult to make informed choices and seek out the best quality at the most affordable price, which contributes to higher healthcare costs overall, he says.
Leavitt emphasized that the initiative is voluntary. Employers that agree to the four goals will be encouraged to sign a support statement as part of a package of materials that is being made available to employers and other healthcare stakeholders. The four cornerstones are:
- Encourage Adoption of Health Information Technology Standards by supporting interoperable health information systems and products in order to enable the availability and secure exchange of healthcare information.
- Increase Transparency in Quality by implementing, or asking those with which supporters contract to implement, programs to measure the quality of services provided by doctors, hospitals, and other healthcare providers and making this information available to health-plan enrollees.
- Increase Transparency in Pricing by implementing, or asking those with which supporters contract to implement, programs to make available to health-plan enrollees the overall cost or price of their care.
- Promote Quality and Efficiency of Care by offering incentives that encourage and facilitate high-quality and cost-effective health care.
All this seems consistent with Health Savings Accounts (HSAs) and the consumer-driven model of health care that this administration prefers. Such a voluntary initiative will likely not do much for solving this country's health care crisis, but there is certainly nothing wrong about bringing some transparency to a system that often seems inscrutable to employees.
The only question now is whether there is enough incentive for employers to comply with this program.
Germs in the Workplace
Thanks (I think) to Diane Pfadenhauer of Strategic HR Lawyer for bringing to our attention a truly important survey about the workplace: which workplaces have the most germs?
Now, I am no rocket science on such matters, but it strikes me as a bit odd that doctor's workplaces only come in 5th on the list generated by WebMd and sponsored by the Clorox company, while accountants are second. They must be talking about actual offices and surfaces therein, and not where they actually perform their jobs (can't say I have seen an accountant or teacher lately with one of those Michael Jackson masks on).
In any event, lawyers come in 9th and Diane tells us that the major culprits for germs are phone, desks, computer keyboards, and computer mouses. I would have thought that just the ventilation systems make some larger workplaces especially unhealthy in this regard.
In any event, next time you visit your accountant, get your surgical mask ready.
NLRB Introduces My NLRB Website
Among other improvements, the new site allows registered users to access the electronic docket of any case pending before the Board, provides more content in a more user-friendly format, and allows parties to e-file certain documents with the Board.
We applaud the NLRB for seeking to bring more transparency to its administrative processes and making it easier for parties to interact electronically with the Board through its new My NLRB services.
IBM Learns The Hard Way About the Functional Nature of FLSA Overtime Exemptions
EarthTimes.org has word that IBM has settled another expensive overtime suit with a group of technology workers for $65 million (previous post when this case was initially filed back in January).
According to the story:
International Business Machines (IBM) said it would pay $65 million to settle a class-action lawsuit in which it was accused of illegally denying overtime pay to a large group of technology workers.
Employees on behalf of whom the lawsuit was brought would now be paid overtime dues according to rank and the number of hours worked, the workers and the company agreed. The settlement has yet to receive the approval of district court Judge Phyllis J. Hamilton.
The company had earlier maintained that the group of 32,000 workers, classified as "Technical Services Professional and Information Technology Specialists,” were not entitled to overtime pay.
Although the company thought that the workers were professional, specialized computer operators exempted from the FLSA overtime provisions, closer scrutiny established that they merely troubleshooted computer issues by following a manual.
A very expensive illustration why it is important for companies not to just rely on the title of a job when classifying employees for purposes of the FLSA. Instead, a functional analysis should be done to see if the employees in question exercise the requisite discretion and meet the other conditions for an exemption.
November 23, 2006
The Memphis Living Wage Ordinance and ERISA Preemption
From my neck of the woods comes word that the Memphis City Council has passed a living wage ordinance for those business that contract with the city to provide services, with some important exclusions (via The Commercial Appeal):
In the 11-1 vote, the council sided with proponents who for months have been pushing for a living wage, which in Memphis is considered to be $10 an hour with benefits or $12 an hour without.
The council already has approved living wages for all full-time city workers and Tuesday a council committee approved extending it to part-time and temporary city employees as well. The part-time worker provision still faces the full council.
The approved ordinance covers service contracts such as janitorial services, but not employees working at the Cook Convention Center, the Mid-South Coliseum and FedExForum. Council members said those venues are jointly funded with the county, which has not approved a living wage.
The restaurant exclusion also allows the city to exempt some food service contracts that may simply cater one meal, for instance. Council members said the city would be hard-pressed to try to force national chain restaurants and hotels to pay higher wages to their Memphis employees.
To the extent that the city ordinance requires covered private employers to provide health benefits as part of the living wage, there is at least an argument that such mandatory benefits may run into ERISA preemption because the law would adversely impact upon the administration of employee benefit plans.
The fact, however, that the ordinance allows for an option that does not require covered employers to provide benefits if they are willing to provide a higher wage rate may make the law less likely to have an adverse impact and cause it not to be subjected to ERISA preemption.
I guess it remains to be see whether the argument will be raised.
Hat Tip: Megan McGrew
Aircraft Cleaning Leads to Temporary Labor Dispute at Northwest Airlines
Although the strike is now over between the Northwest Airline mechanics and the airline, one of the aspects of the settlement agreement was that the airline could contract out airplane cleaning, a job previously done by the mechanics. No one told the baggage handlers of the IAM (from Philly.com):
Baggage handlers for Northwest Airlines Corp. stopped working briefly at the airline's Minneapolis hub on Wednesday in a dispute over who will clean airplanes, but there were no major disruptions for travelers.
Neither the airline or senior union officials would call the dispute a work stoppage, a phrase that carries legal weight under labor laws.
The dispute is over who will clean airplane cabins and lavatories. In recent years it was done by the union that also represented Northwest mechanics. Their strike in August 2005 sent the work went to IAM baggage handlers, a bitter rival of the mechanic's union.
But a settlement of the mechanic's strike approved by a bankruptcy judge on Tuesday allows Northwest to send that work to contractors - and Northwest wasted no time in doing that on Wednesday.
Northwest clearly had the "right" to do what it did, but better communication with the IAM would have averted this Thanksgiving holiday situation.
November 22, 2006
Whistleblowers Allow Government to Reclaim Billions This Year
Here's a noteworthy article from yesterday's Las Vegas Sun describing the continuing impact whistleblowers are having in fighting government fraud:
Whistle-blowers tipped off the government to $1.3 billion worth of fraud cases over the last year, largely at hospitals or other health care providers, the Justice Department said Tuesday.
In all, the department recovered $3.1 billion in settlements - what prosecutors said was a record amount - from individuals and companies during the 2006 fiscal year that ended Sept. 30.
Given the recent blow government whistleblowers took in Garcetti v. Ceballos in not having their official capacity speech protected by the First Amendment, it is good to know that other laws, like the False Claims Act, are still providing a mechanism to deter governmental fraud (not that this makes it less necessary to also have appropriate constitutional protections in place for public employees).
Of course, it is does not hurt that such whistleblowing cases provide significant financial incentives to individual whistleblowers, last year to the tune of $190 million.
6th Cir: Public Employee May Have First Amendment Protection for Speech He Never Actually Gave
Yet another public employee free speech case. But this one has an interesting twist: can a public employee claim First Amendment protections for speech that he claims he was fired for, but he never actually made?
In Scarborough v. Morgan County Bd. of Educ., No. 04-6302 (6th Cir., Nov. 22, 2006),
the facts of the case were:
Plaintiff Paul Scarbrough, the former elected school superintendent for Morgan County, Tennessee, was not appointed to the new position as the Director of Schools for the county system following the publication of a newspaper article which announced that he would be the featured speaker at a convention sponsored by a church with a predominantly homosexual congregation.
The district court dismissed the plaintiff's claim finding that because the plaintiff never went to the convention or spoke at the church, he had no First Amendment rights to protect.
The 6th Circuit reversed, disagreeing "with the conclusion of the district court that no speech occurred here. Scarbrough agreed to pray or speak before the Metro congregation. The Knoxville News-Sentinel and others reacted as though Scarbrough was going to make or did make the speech in question. Therefore, we will proceed to analyze Scarbrough’s case under the traditional [Connick/Pickering] tests."
I'm not sure this is the best reasoning in the world, but the outcome seems right. In any event, because there was a genuine issue of material fact concerning whether the employee was terminated for giving this speech he never gave, the case was remanded back to the lower court to see if he could prevail on his First Amendment retaliation claim.
Third Annual Employee Benefits Writing Competition
Norm Stein (Alabama) sends word along on the Benefits Prof listserv that the American College of Employee Benefits Counsel is holding its Third Annual Employee Benefits Writing Competition.
Entries can be on any topic in the field of employee benefits law. Submission are due by May 1, 2007 and there are two $1500 First Prizes, along with the chance to have the piece published in the BNA Pension and Benefits Reporter or BNA Tax Management Compensation Planning Journal.
More information about the competition can be found in this flyer.
Davis on Deadline for Notices for Automatic Enrollment Under the PPA
Debra Davis of Reish Luftman Reicher & Cohen has written a helpful summary of the automatic enrollment provisions of the Pension Protection Act of 2006. Debra writes:
The Pension Protection Act preempts state laws that interfere with automatic enrollment plans . . . if certain requirements are met. These requirements include: (1) providing notices to participants who will be subject to automatic enrollment; and (2) placing their automatic deferrals in a “qualified default investment alternative” (known as a QDIA) if a participant does not direct the investment of his account.
In order to obtain the benefit of preemption of state payroll laws (such as in California, which prohibits withholding from an employee’s paycheck without written consent), the notices must be sent to participants within a reasonable period of time before the beginning of the plan year. Although a specific time period is not provided in the PPA, a period of 30 days has been used by the PPA for other “reasonable” periods of time. For calendar year plans, this deadline would be December 1st.
You can read the rest of what Debra has to say about complying with this provision, as well as find other pertinent information on the PPA, in Reich's November Plan Sponsors Bulletin.
November 21, 2006
WorkLife Law’s Guide to Family Responsibilities Discrimination
UC Hastings College of the Law
Cynthia Calvert, Deputy Director of the Center for WorkLaw Life at the UC Hastings College of the Law, has sent along word that she and Professor Joan Williams (Hastings) have published a legal Guide to Family Responsibilities Discrimination.
From the Press Release:
A woman’s position is eliminated while she is on maternity leave. A father who takes time off to be with his kids is taken off important assignments. A mother isn’t considered for promotion because her supervisor thinks she won’t want to work any additional hours now that she has little ones at home. A man is fired when he asks for leave to care for his dying father.
All of these employees are facing Family Responsibilities Discrimination, a rapidly growing area of employment law. FRD can affect pregnant women, mothers and fathers of young children, and workers who take time off to care for their aging parents. Attorneys who represent such employees now have a groundbreaking resource for information about discrimination against workers who care for family members.
WorkLife Law’s Guide to Family Responsibilities Discrimination is the first treatise of its kind. Published by the Center for WorkLife Law, the 160-page Guide provides a thorough overview of the federal and state laws that can be used to protect workers who have family caregiving obligations. It provides practice tips, an extensive compilation of case law, and a special section on research about bias against mothers. The Guide is in loose-leaf format to allow easy updating in this rapidly expanding area of the law.
You can get ordering information for this important new employment discrimination treatise here.
Arthurs Pens New Canadian Labour Law Report
David Oppenheimer (Golden Gate) has sent along, via his colleague Geoffrey England at the University of Saskatchewan, a new Report, written by Professor Harry Arthurs (pictured left), on the reform of the employment standards part of the Canada Labor Code.
The details of the report deal with the reform of the employment standards part of the Code, but, as interesting as these are, they pale in comparison with the seminal analysis of the policy benchmarks of ensuring justice in the workplace that Harry provides. There are two or three chapters where Harry establishes the benchmarks, including the moral right to decent working conditions, harmony with international standards, productive efficiency etc. . . . [T]he analysis is spectacularly brilliant; it is a template that can be used in any area of labor law, be in collective trade union law, individual employment law or human rights law.
The crucial point in the report is where [Arthurs] says that the moral right to decency in the workplace trumps the employer's interest in productive efficiency in those circumstances where the two interests collide.
Having met and listen to a presentation by Professor Arthurs at the Law & Society Conference this past July in Baltimore, I imagine he will have some important insights not only on Canadian Labour Law, but for American labor and employment law as well.
You can access the entire report at this link.
Houston Janitors Secure City-Wide Contract
The Houston Justice for Janitors website is reporting that the SEIU union has been successful in obtaining increases in wages, hours, and benefits for Houston janitors as part of a new collective bargaining agreement.
According to the report on the website:
On the heels of a string of victories in Miami, Los Angeles and Boston that have resulted in dramatic gains for families, more than 5,300 janitors in Houston won higher wages, more hours, and health insurance in their first city-wide union contract. The contract will lift hundreds of janitors out of poverty, more than doubling their income within 24 months and guaranteeing secure affordable health care. Houston is the second major victory for janitors in less than a year, and is being seen as a major breakthrough in the South and for low-wage workers around the country.
Gains were particularly significant on the wage front:
Janitors will see their wages rise by 126 percent over the course of the contract-with an immediate 21% increase on January 1. Janitors pay will increase to $6.25 an hour on January 1, 2007, $7.25 an hour on January 1, 2008, and $7.75 by January 1, 2009.
The janitors made progress as well on the health care front, but changes are not due to take effect for another two years:
Houston janitors won individual health insurance at a cost of only $20 per month. Family insurance will also be available for a cost of $175 a month. The health insurance will become available starting January 1, 2009.
Nevertheless, the SEIU and the Change to Win Coalition have achieved an important labor victory in state, and a region, not known for its support of unions.
Severe Labor Shortage Wracks Poland
Interesting article in this past Sunday New York Times about the increasing scarcity of labor in Poland. Here's a taste:
New Polish-language newspapers are flourishing in Britain and Belgium, France and Sweden, Ireland and Germany, catering to Polish craftsmen, engineers, teachers, nurses, plumbers, architects, maids and drivers. These newspapers are the lifeblood for newcomers seeking to find cheap housing, ferret out Polish food shops and meet teachers to learn their new language.
This is the “second” Poland, a diaspora of 800,000 Poles estimated by officials here to have left the country since it joined the European Union in May 2004. The exodus is believed to be one of the largest migrations by Europeans since the 1950s, when a wave of Irish crossed the Atlantic to escape poverty.
But in Poland, this huge movement of people has created a labor shortage so severe that the government may not be able to spend the money that is due to begin arriving in January from the European Union for projects like improving roads and the water supply.
And it appears that one of the main culprits for the lack of labor in Poland is, "the mismatch between jobs and workers. Krystyna Iglicka, a migration expert and sociologist at the Center for International Relations in Warsaw, says that Poland’s education system failed in the 1990s to train enough skilled workers, including engineers and craftsmen."
From a comparative labor law standpoint, there are certainly some important lessons here for our own American labor situation.
November 20, 2006
Paul Caron over at TaxProf Blog points to a new way to rank your blog with the methodology devised by Kineda -- an "Entertainment, Pop Culture and Lifestyle" blog.
TaxProf Blog is a well-deserved A-List Blog, meaning that it is part of the "The Very High Authority Group," with 500 or more blogs linking in the last 6 months according to Technorati.
Workplace Prof is a B-List Blog, meaning that it is part of:
The High Authority Group (100-499 blogs linking in the last 6 months)
The third group represents a decided shift in blog age while not blogging much more frequently than the last. In keeping with the theme of the maturation of the blogosphere, it seems evident that many of these bloggers were previously in category two and have grown in authority organically over time. In other words, sheer dedication pays off over time.
Not bad for a speciality law blog and we're thankful for not being on anybody's C or D-List (though some celebrities are apparently proud of being on the D-list).