February 4, 2006
An Olympic Firing
The sport's national federation has now fired Nardiello for ignoring orders not to join the U.S. Team in Switzerland for their final Olympic preparations. The story is here.
A Survey on Workplace Surveillance and What It May Portend for Workplace Privacy
A new survey by the AMA/ePolicy Institute Research finds:
To motivate employee compliance, companies increasingly are putting teeth in technology policies. Fully 26% have fired workers for misusing the Internet. Another 25% have terminated employees for e-mail misuse. And 6% have fired employees for misusing office phones.
When it comes to workplace computer use, employers are primarily concerned about inappropriate Web surfing, with 76% monitoring workers’ Website connections. Fully 65% of companies use software to block connections to inappropriate Websites—a 27% increase since 2001 when AMA and ePolicy Institute last surveyed electronic monitoring and surveillance policies and procedures in the workplace.
All of this has profound consequences for workplace privacy. Many employers are systematically redefining what employees should have a "reasonable expectation in privacy" about.
This is crucial because the invasion of privay tort resolves around two factors: (1) did the employee have a reasonable expectation of privacy in their activity; and (2) would a reasonable person find the invasion highly offensive. (Remember that the 4th Amendment prohibition on unreasonable search and seizures only applies to state action and thus only applies to public employees).
In short, when it comes to telephones, email, and internet (including blogging!) at the workplace, employees would be best to assume that not only is nothing private, but their employers are taking active measures to make sure that such technology is not being used for non-work purposes.
OFCCP Had Record Year in 2005
The Office of Federal Contract Compliance Programs (OFCCP) recently announced that it collected a record $45,156,462 in Fiscal Year 2005 on behalf American workers who were victims of discrimination.
The amount of money OFCCP has reaped from federal contractors and subcontractors in its enforcement efforts has risen dramatically since 2001 when it collected $28,975,000, representing a 56 percent jump in a four-year period. Meanwhile, OFCCP collected money on behalf of 9,093 workers in FY 2001, and 14,761 in 2005, a 62 percent increase.
OFCCP reports that 97 percent of the money it collected occurred in cases of "systemic discrimination" or those that involved "a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy." The average benefit per discrimination victim for FY 2005 was $3,059.
For those not familiar with what the OFCCP does:
For those not familiar with what the OFCCP does:
Employers who do business with the federal government and are covered by Section 503 of the Federal Rehabilitation Act of 1973, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA) and Executive Order 11246 are prohibited from discriminating on the basis of race, color, religion, sex, national origin, disability or covered veteran status. OFCCP, part of the U.S. Department of Labor, administers and enforces these laws.
By way of further information, Executive Order 11246 requires certain government contractors and grantees to have a written affirmative action plan in place. I have been involved in helping to put together one of these plans in my former practice life, and to say it ain't easy would be an understatement.
Hat Tip: George's Employment Blawg
NASA Inspector on the Hot Seat
A federal agency is investigating allegations that the inspector general for the US space agency ignored safety violations in the space shuttle program and retaliated against whistle blowers, a US newspaper reported.
The probe, based on numerous complaints from space agency employees and former employees, is examining accusations that NASA Inspector General Robert Cobb undermined safety efforts and stifled or ignored concerns about a malfunctioning self-destruct procedure during a 2002 space shuttle launch, the Washington Post reported.
He allegedly squelched attempts to learn why funding to improve deteriorating launch pads and other shuttle infrastructure was cancelled prior to the February 2003 Columbia disaster, the paper reported, citing documents submitted to investigators and interviews with current and former NASA employees.
Cobb was also accused of allegedly disregarding his mandate to prevent waste and fraud, punishing staff members who raised questions and suppressing internal investigations of wrongdoing at the National Aeronautics and Space Administration (NASA), the Post wrote.The inspector general is also alleged to have failed to report to the Commerce Department the theft of an estimated 1.9 billion dollars worth of data on rocket engines. The data was stolen by "a person from a South American country" who managed to log on to the Marshall Space Flight Center's computer system, the paper reported.
The probe is being carried out by the Integrity Committee of the US president's Council on Integrity and Efficiency and is led by Chris Swecker, a top official of the Federal Bureau of Investigation (FBI).
If these allegations are true, it could go a long way in explaining some of the problems surrounding the country's space program. It is also good to know that the federal government is taking at least some whistleblowing allegations seriously.
Job Growth Good, For Some
From Angry Bear:
[Yesterday,] the BLS released its estimate of net new job creation in Janaury. Including upward revisions in the new job estimates for the previous few months, it was a pretty good report.
Interestingly, construction employment still seems to be growing robustly, despite some concerns that the real estate market is cooling off; 46,000 of the new jobs created last month were in construction.
Taking a look at the industry shares of employment gains over the past year illustrates that construction has regularly accounted for nearly one out of five new jobs in the US economy.
Here are the relevant charts and graphs showing where the economy is doing well and not so well (click on charts to read):
Delta Employees Lose Millions in 401(k) Equity
James Pilcher reports in today's Cincinnati/Kentucky Enquirer that Delta Airlines employees saw the value of their shares in Delta stock reduced to $1 per share cash-out value in the company's bankruptcy proceeding. That's a far cry from previous values in the $70 range, creating a total loss to employees of nearly $300 million. Delta's response: at least our employees did better than United employees, who got nothing.
This illustrates yet again what economists have been saying for years: it's foolish for employees to invest their retirement savings in their current employer's stock, and unconscionable for companies to encourage or require (and perhaps even permit) employees to do so. That's just putting too many eggs into one basket. Losing your job or your retirement savings is bad enough; losing both is catastrophic.
February 3, 2006
Breaking News: NW Pilots Authorize Strike Vote
Breaking news from Reuters.com:
Northwest Airlines Corp.'s pilots' union has approved a vote to authorize a strike at the carrier, a union leader said on Friday, as it remains split with the bankrupt airline on the extent of potential concessions.
Mark McClain, chairman of the Northwest chapter of the Air Line Pilots Association, told a federal bankruptcy court in Manhattan that the union leadership had authorized him on Thursday night to poll members on a strike.
The move, the second among several that the union has to take under its rules before striking, ups the ante during negotiations with the carrier.
The rest of this developing story is here.
"Retaliatory Harassment" Theory Embraced By Alito and Third Circuit
Update: The Employment Law Bulletin has some further analysis on how this case may impact Justice Alito's vote in White v. Burlington Northern & Santa Fe Railway Co.
In an opinion by Judge Alito (no less), the court in Jensen v. Potter, No. 04-4078 (3d Cir., Jan. 31, 2006) stated that, "The threshold question is whether a retaliation claim predicated upon a hostile work environment is cognizable under 42 U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn't, and our sister circuits are split. A majority has held that the statute prohibits severe or pervasive retaliatory harassment."
Siding with the majority of courts on this issue, the Third Circuit found that, "the District Court incorrectly held that coworker harassment cannot violate 42 U.S.C. § 2000e-3(a). As to sex discrimination, the record contains evidence sufficient to support a finding that the alleged retaliatory harassment was also discrimination 'because of ... sex.'"
By far the most interesting part of Alito's opinion:
As an abstract matter, retaliation against a person based on the person's complaint about sexual harassment is not necessarily discrimination based on the person's sex. If the individuals carrying out the harassment would have carried out a similar campaign regardless of the sex of the person making the complaint, the harassment, while actionable as illegal retaliation, would not also be actionable as discrimination based on sex.
In reality, however, when a woman who complains about sexual harassment is thereafter subjected to harassment based on that complaint, a claim that the harassment constituted sex discrimination (because a man who made such a complaint would not have been subjected to similar harassment) will almost always present a question that must be presented to the trier of fact.
In such a situation, the evidence will almost always be sufficient to give rise to a reasonable inference that the harassment would not have occurred if the person making the complaint were a man. The difficult task of determining whether to draw such an inference in a particular case is best left to trial.
A very worker friendly opinion by Justice Alito indeed!
Retirees Sue Ford, UAW over Health Care
This story is a perfect follow-up to the post yesterday concerning whether Gene Upshaw and NFL Players Association had any duty to protect the interests of retirees. As I pointed out yesterday, the technical answer is the union does not have a duty to represent the retirees, as retirees under the National Labor Relations Act are not statutory employees (under Section 2(3)) and therefore cannot be in the bargaining unit.
Now comes word that a group of retirees is upset with the UAW over a deal that it entered into with Ford making retiree health benefits more expensive. So rather than the union disclaiming its responsibility for its retirees as with the NFL Players association, you have the opposite side of the coin with the union seeking to represent the retirees and the retirees not happy with that representation at all.
The law, especially in the 6th Circuit, seems to favor the retirees in their lawsuit against the UAW and Ford in reducing their retiree health benefits. As I explained in a previous post, the Yard-Man presumption means that status benefits like retiree health benefits extend beyond the term of any given collective bargaining agreement, and the presumption is, absent evidence to the contrary, that retiree health benefits cannot be changed by the union for current retirees. The most recent case upholding the retirees claims in a case like this was the Yolton case (just decided January 17th).
This is not to say that the retirees have a cake walk. They still must prove that based on the language of the old collective bargaining contracts that they are vested in their retiree health benefits and there were promises made either in the CBA, the plan documents, or through oral assurances that they would have the same attractive health care in retirement throughout their lifetimes.
I'll update everyone on the status of this case as it progresses. There is a lot on the line as, "[t]he outcome of the retirees' motion could have implications for tens of thousands of Ford retirees, surviving spouses and dependents. It also could establish a precedent for other U.S. automakers and parts suppliers trying to shed costs by reducing retiree benefits."
Here is the summary of the lawsuit from the Detroit News.
February 2, 2006
NFL Contract Talks Stall; Decertification a Possibility
Keeping with the sports theme today and the fact that we are deep into Super Bowl week (go Steelers!), here's an update from ESPN.com on the labor talks between the NFL owners and the Players Association:
The NFL Players Association is preparing to take the league to court if there is no immediate progress on a new contract.
NFLPA executive director Gene Upshaw set March 9 as the date he will begin consulting players on legal action if no deal has been reached to extend the collective bargaining agreement. Upshaw said Thursday that the current stalemate is due more to a disagreement among the owners on revenue sharing than conflict between the league and the union.
The current contract expires after the 2007 season, but it calls for an uncapped year in '07. Without a new CBA, negotiations on individual contracts in the free-agent period that begins March 3 will be much more difficult for teams and players.
"The price of poker will go up," Upshaw said at the union's Super Bowl news conference. "We can not stay in the place where we are now."
Upshaw insisted the union is prepared for decertification, which involves disbanding and going to antitrust court to ask for a set of rules under which the NFL would operate. The union did that to end the monthlong 1987 strike and played without a contract until 1992, when the court ruled in its favor -- leading to the current deal negotiated with commissioner Paul Tagliabue and the owners. That deal included free agency for the first time, as well as the salary cap, which took effect in 1993.
"We've demonstrated we are not afraid to decertify," Upshaw said. "We understand the laws and what's available to us."
The rest of the article can be read here.
Who Does the NFL Players Union Represent?
In a column today by William Rhoden in the New York Times (subscription required), Upshaw was quoted as saying, "The bottom line is, I don't work for [retired NFL football players]. They don't hire me and they can't fire me. They can complain about me all day long. They can have their opinion. But the active players have the vote. That's who pays my salary."
And while this is technically the right answer (to the extent that retired workers are not considered statutory employees under the NLRA or members of the collective bargaining unit), Upshaw is doing no favors to himself or his union in ignoring the growing concerns of retired football players over such things as pensions and death benefits.
This is for the obvious reason that active players will someday soon (given the short duration of most NFL playing careers) be retired players themselves. And, as such, active players should, and do, care very much about how their union will treat them once they are retired.
Now, it may be argued that current players have substantially different interests than old-time football players in that they will have more lavish pensions and larger playing salaries to rely upon and, thus, will not have the same concerns that current retirees have. But a perspective like that ignores the whole concept of what it means to be in a union. I still remember the speech that the fictional Reuben gave in the movie Norma Rae about how Reuben's father (a union member) had a large extended family at his funeral when he died as a result of his union ties.
In short, Upshaw's vision of his role as the head of union is technically accurate, but miserly, and short-sighted to the point of being destructive.
Hat Tip: Sam Bagenstos
MSHA Response to Miner Deaths
Acting Assistant Secretary of Labor for Mine Safety and Health David G. Dye is asking coal mines across the country to conduct a time-out, or "Stand Down for Safety," on Monday, Feb. 6, in the wake of a recent upsurge in mine accidents. Dye also announced that, in addition to this national safety "stand down," MSHA is deploying additional mine safety inspectors to the state of West Virginia to respond to the unusually high number of mine fatalities in West Virginia this year.
West Virginia Governor Joe Manchin's has called for an immediate and indefinite stand-down of WV mines, as Paul reported earlier today. MSHA's stand-down won't occur until Monday and then will last only an hour, but it will be nationwide. MSHA has posted online materials on mining workplace safety.
Top Gay Workplaces
The Washington, DC-based Human Rights Campaign Foundation has released a new online ranking of the employers most supportive of gay, lesbian, bisexual and transgender (GLBT) employees and consumers.
America's treatment of GLBT employees, consumers and investors. Corporations are rated on a scale from zero to 100 on criteria, including protection against discrimination based on sexual orientation and gender identity, parity of health care benefits for domestic partners and other issues.
At the top of the list? Whole Foods, Raytheon, DaimlerChrysler, American Express, and Gap.
At the top of the list? Whole Foods, Raytheon, DaimlerChrysler, American Express, and Gap.PS
West Virginia Mines Shut Down; Death Toll at 16
West Virginia Gov. Joe Manchin called for the state's mines to halt operations for safety reviews Wednesday after two miners died in accidents earlier in the day.
"I am calling on the industry to cease production activities immediately and go into a mine safety stand-down," Manchin said.
"We're going to correct any unsafe conditions before we mine another lump of coal," the governor told reporters. "There's not going to be another miner going in a mine until this is done."
The governor's call to suspend production was voluntary, but Manchin spokeswoman Lara Ramsburg said Wednesday night that "We have had no company so far tell us that they aren't going to do so."
Inspections by state and federal teams will start immediately, she said. Normally, each mine is inspected quarterly.
It's about time.
"Bad Idea Jeans": Basketball PR Manager Fired for "Ghetto Prom" Email
From CBS Sportsline.com:
The public relations manager for the Golden State Warriors was fired Wednesday for inadvertently sending out a racially insensitive e-mail titled "Ghetto Prom" to the team's entire media distribution list.
Eric Govan, the No. 3 person on the Warriors' media relations staff, sent the e-mail featuring 17 photos, many depicting scantily clad black people in formal attire and commentary on the outfits. The e-mail went to dozens of newspaper reporters, columnists and sports editors, as well as television and radio stations.
A call to Govan was not immediately returned Wednesday evening, though he quickly sent out a follow-up apology e-mail.
"You just received a previous forwarded e-mail titled 'Ghetto Prom' that was sent accidentally," Govan wrote. "I assure you that this is totally out of character for myself and want to apologize to anyone who might be offended. My sincere apologies. This won't happen again and shouldn't have happened this time."
Here's my question: does the guy deserve a second chance? One could argue that there was not malicious intent involved, and he is truly remorseful over his actions. Whatever happened to progressive discipline? Was the industrial death penalty appropriate? Thoughts?
February 1, 2006
Wal-Mart Sued for Not Stocking Controversial Contraceptive
This story acts as a counterpoint to the recent story about the fired Walgreen pharmacists who refused to fill prescriptions for morning after pills.
From the AP:
Backed by abortion rights groups, three Massachusetts women sued Wal-Mart on Wednesday, accusing the retail giant of violating a state regulation by failing to stock emergency contraception pills in its pharmacies.
The lawsuit, filed in state court, seeks to force the company to carry the morning-after pill in its 44 Wal-Marts and four Sam Club stores in Massachusetts.
The plaintiffs argued that state policy requires pharmacies to provide all "commonly prescribed medicines."
Wal-Mart carries the morning-after pill in Illinois only, where it is required under state law, said Dan Fogleman, a spokesman for Bentonville, Ark.-based Wal-Mart.
Fogleman said the company "chooses not to carry many products for business reasons." He would not elaborate. But in a letter to a lawyer for the plaintiffs, a Wal-Mart attorney said the store chain does not regard the drug as "commonly prescribed".
Just so everyone is clear, there is not an ERISA preemption issue here because this case does not implicate an employer-provided employee benefit plan. Rather, the law in question seeks to regulate companies that have pharmacies in the State of Massachusetts.
As to the merits of this case, my first impression is that such state social and economic legislation should be shielded from federal and state constitutional attack as long as it is rationally related to a legitimate government interest. I think it is.
And unless I'm missing something here (which is always a distinct possibility), Wal-Mart will seek to fight this case based primarily on the statutory meaning of what it is for a drug to be "commonly prescribed" rather than based on some constitutional autonomy or religious concern. And I think Wal-Mart is in some difficulty with the "commonly prescribed" argument given that one of its chief competitors, CVS, stocks the morning after pill in all of its stores in Massachusetts.
Susan Saab Fortney (Texas Tech) has written a research report based upon her research for the National Association of Law Placement Foundation. Fortney studied attorneys practicing in law firms, government offices, and corporate legal departments. The report, titled Pursuit of Attorney Work-Life Balance: Best Practices in Management finds that:
- About two-thirds of supervised firm attorneys agreed that they are forced to sacrifice fulfillment outside of work in order to advance their careers.
- Nearly half of supervised firm attorneys and 41% of supervised corporate attorneys reported that they would be willing to make less money in order to work fewer hours.
- Despite obstacles, part-time attorneys as a group reported a higher level of job satisfaction than attorneys working on a full-time basis.
- More than 70 percent of supervised attorney report having moderate to major problems in handling personal health/fitness needs, household responsibilities, and partner and family needs.
- Almost half of all supervised attorneys reported feeling stressed and fatigued most of the time.
Including the Disabled in the International Development Agenda
Judith E. Heumann, World Bank adviser on disability and development, will be the featured speaker at The Thornburgh Family Lecture Series in Disability Law and Policy in the University of Pittsburgh School of Law. Her talk, Including the Voices of Disabled People in the International Development Agenda, will be held from 1 to 2:30 p.m. Feb. 9. A question-and-answer session will follow the lecture.
An internationally recognized expert on disability and diversity issues, Heumann was appointed as the World Bank's first adviser on disability and development in June 2002. She leads the World Bank's disability work that integrates the needs of people with disabilities in the bank's discussions with client countries; its country-based analytical work; and its support for policies, programs, and projects to improve economic and social life around the globe.
January 31, 2006
Another Blogger Bites the Dust: Fired by Newspaper For Rude Postings on Personal Weblog
A reporter for the weekly Dover Post newspaper was fired Monday for offensive comments made on his personal weblog.
Matt Donegan, a copy editor and reporter for the newspaper, was fired by Dover Post Editor Don Flood after a reader reported the blog entries to Sussex County radio talk-show host Dan Gaffney.
"I looked at the site, and sure enough it was there. Immediately afterward I verified with [Donegan] that it was his site and this is what he had written," Flood said. "And at that point I fired him."
Flood said some of the blog entries were "extremely offensive and just contrary to what we believe here."
Of the more controversial postings on the site, Donegan wrote about being awoken at night by loud African-American neighbors:
"I bet James Earl Ray [King's assassin] was woken up by black people yelling pointlessly in the streets the night before he killed your civil rights leader."
In his defense, Donegan stated that his firing is "a freedom-of-speech issue, and I don't think I was treated fairly in this case . . . . What I wrote ... was rude, but it doesn't make it wrong."
Well, Matt, I'm all for First Amendment speech protections when relevant, but because you work for a private employer, there is no state action involved in your being fired and, thus, no constitutional issues. On the other hand, you may be able to claim protection if your state has a statute that protects legal off-duty conduct of employees, but I'm not sure if Delaware has one of these laws yet.
Further, although it might help if Matt had some form of just cause protection beyond employment-at-will, even if he does, the newspaper may be able to claim that such just cause existed as it should not have to keep an employee which through his conduct placed the employer in a bad light in the community. In other words, as long as the employer can show that the employee's off-duty activity adversely impacted legitimate employer concerns (such as community credibility as a newspaper), I think Donegan may just be out of luck.
Finally, even if Matt had been a public employee, he probably would not have fared much better because he does not appear to have spoken on a "matter of public concern" under Connick, and even if we assume that he did, the balancing of interests done under Pickering would probably lead to the conclusion that the substantial disruption to the newspaper caused by Donegan's off-duty conduct would cause the balance of interests to tip in favor of the public employer.
Query whether a case like this comes out differently, assuming Donegan was a private sector employee again, if he did not hold such a high profile job in the community as a newspaper reporter and, therefore, would not have been as likely to be seen as the "face of the employer" to the community.
Hat Tip: the raw story
Hawaiian Public Employment Residency Requirement Under Review
Last Update (2/3/06): A federal judge has ruled against the 27-year-old law banning out-of-state residents from applying for public jobs in Hawaii. The judge granted the American Civil Liberties Union an injunction to prohibit the state from enforcing the requirement. (Employment Law Practice Center)
Further Update: Thanks to Mike Zimmer for pointing out that Saenz v. Rose (U.S. 1999) might also point to the fact that there are additional privilege and immunity interests in the 14th amdt context concerning the right to interstate travel which might also bear on the outcome of this case.
Update: OK, I think I have a better grasp of what is at issue here. The U.S. Supreme Court in State of New Hampshire v. Piper (1985) found that the Privileges and Immunities clause of Article IV, sec. 2, does not preclude discrimination against nonresidents where there is substantial reason for difference in treatment and discrimination practiced against nonresidents bears a substantial relationship to a state's objective.
Although the Piper Court struck down a New Hampshire law limiting bar admission to residents for lack of substantial reason, to be somewhat provocative, I think Hawaii can meet this test when it comes to its unique circumstances as a public employer (for the reasons discussed below) and show a substantial relationship to its objective through use of the residency requirement.
After a wonderful stint at the University of Hawaii Law School this past summer teaching labor law to a wonderful group of students (shout out to Nathaniel and Liam if you're out there!), I have tried to keep up with at least the labor and employment law goings on in the State of Hawaii.
Thus, it is hardly surprising that this controversy made its way on to my radar screen (through Howard at How Appealing).
Apparently, the State of Hawaii has a requirement that public employees must be residents of Hawaii. The policy underlying this law is that there are too many people who just move to Hawaii for the experience of paradise for a couple of years and then return to their home states. Hawaiian government employers want more assurance they will have a stable workforce and use individuals' Hawaiian residency as a proxy for these assurances.
The ACLU and two residents of Florida have now challenged the Hawaiian residency law as unconstitutional. And it appears that the District Judge hearing the case is at least sympathetic to the plaintiffs' viewpoint. From the Honolulu Star Bulletin:
A federal judge said he is troubled by a state law that prohibits out-of-state residents from applying for public employment, suggesting that the state Legislature review it.
U.S. District Judge David Ezra is expected to rule by next week on the American Civil Liberties Union of Hawaii's motion seeking an injunction to prohibit the state from enforcing its pre-employment residency requirement, enacted in the 1970s under then-Gov. George Ariyoshi.
The ACLU and Honolulu attorneys Anne Williams and Michael Livingston, who filed suit on behalf of two Florida residents who were turned down when they tried to apply for government jobs here, contend the law is unconstitutional and discriminatory.
"It sends a message that nonresidents are not welcome," said Lois Perrin, legal director for the ACLU.
State attorneys disagree, saying it is constitutional and that the state has the right to require those who apply for public employment here to be residents before they apply.
Now, I'm no constitutional scholar and I'm going here on my recollections from con law classes I took some 10 years ago, but I do not think there is either a full faith and credit clause, dormant commerce clause, or right to interstate travel issue here. This is because of the simple reason that non-residents can still come and work at Hawaii, just not at certain government employment (there are exemptions for some workers like University of Hawaii employees which is why I guess I never had to worry about this).
But even if there is some constitutional question lurking here, doesn't the State of Hawaii merely have to establish that "the Legislature when it passed it could have believed that it was rational and furthered a permissible purpose"? In other words, I'm not seeing more than rational basis review here, and it would appear that Hawaii as a government employer has significant concerns relating to providing efficient and effective governmental services to the public through a stable government workforce and also conserving public money by not having to invest training in public employee who have no intention of making the island state their home for the long run.
Besides, residency requirements exist in other contexts throughout the mainland. I know for a fact of residency requirements that have been upheld in public school teacher and police officer scenarios
Of course, constitutional law novice that I am, I would appreciate if any readers out there could point me to some precedent which would suggest that Hawaii has a greater constitutional burden to meet in a case of this type.
My kama'aina (Hawaiian native) status is on the line.