February 18, 2006
Gender Influences on Law Firm Hiring
Law firms that have greater proportions of male partners and that value stereotypically male characteristics may be less likely to hire and promote female candidates, according to U.Va. sociology professor Elizabeth Gorman, who spoke at a talk sponsored by Virginia Law Women Feb. 15.
According to November 2005 data provided by the National Association for Law Placement, women comprise approximately 48 percent of law students, almost 48 percent of summer associates, and about 44 percent of associates, but only 17 percent of partners. In analyzing this discrepancy, Gorman said she wanted to evaluate the allocation of opportunities, including getting hired, receiving work assignments as an associate, and making partner.
Gorman identified three processes “that can tend to produce an advantage for men in obtaining opportunities.” The first process is based on individual lawyers’ decisions and self-selection, rather than firm-based choices. “In other words, one reason that women might not be hired as often as men, might not get the same assignments or as good assignments as men, might not be promoted to partner at the same rate as men is that the[ women] themselves are opting not to seek those opportunities.”
Second, men may actually be better lawyers. However, there is little evidence that men have stronger skills or abilities out of school. “In fact if anything, it looks the other way—in recent years women have had higher law school grades on average than men,” she said.
The third process involves partners’ cognitive biases in perceiving and evaluating associates. According to Gorman, psychologists have identified two relevant types of biases: in-group preference and schema-based thinking. In-group thinking is an us-versus-them mentality based on characteristics including gender, race, nationality, and more. Laboratory work has found that people tend to feel more comfortable with members of their in-group, finding them more trustworthy and cooperative. “If we apply that then to the law-firm context, all that suggests that partners who are men may tend to show some favoritism towards male associates,” Gorman said. “It may not be conscious, it may not be deliberate at all, it may be just at automatic feeling of being more comfortable with them, and this might be especially true if whatever opportunity is being allocated involves working together.”
Wal-Mart Happy New Hampshire Is No Maryland
The House voted 212-128 to defeat a measure that was primarily aimed at Wal-Mart, Inc. which employs 8,772 in the state, but would have also affected several grocery chains, the state's larger hospitals and major manufacturers, the Associated Press reported.
New Hampshire's version of the bill would have required employers with more than 1,500 workers to spend 8%, if a for-profit entity, or 6%, if a nonprofit, on employee health care (See HB 1704). If the amount was less, the business or nonprofit would have been required to contribute the difference into a health care fund to help pay for care for the poor.
This outcome can hardly be seen as surprising in a state known for its fervent distaste of all forms of state regulation. Of course, the law's impact on non-profit entities did not help the cause either. Finally, I'm still of the opinion that any such law would be preempted by ERISA even if passed (see previous post here). PS
This outcome can hardly be seen as surprising in a state known for its fervent distaste of all forms of state regulation. Of course, the law's impact on non-profit entities did not help the cause either. Finally, I'm still of the opinion that any such law would be preempted by ERISA even if passed (see previous post here).
Sidley Austin Loses Another Round to the EEOC in Court
The Seventh Circuit Court of Appeals, in the voice of Judge Posner, has decided in Sidley Austin v. EEOC (7th Cir. Feb. 17, 2006), that the EEOC can seek monetary damages on behalf of former partners of the law firm of Sidley Austin under the Age Discrimination in Employment Act. The partners have claimed that Sidley forced them to retire under a discriminatory mandatory retirement policy. The court found the case could proceed even though individual former partners failed to exhaust their administrative remedies before the EEOC and could not have brought individual claims themselves as a result.
This appears to be the right decision as it has long been held that Title VII not only vindicates private interests in making victims of unlawful employment discrimination whole, but serves an important public interest as well in eradicating employment discrimination from the workplace. In this sense, the 7th Circuit's decision in Sidley Austin is consistent with the Supreme Court's decision in Waffle House a few years back in which the Court found that the EEOC could bring a suit against Waffle House even though the employee involved had signed an arbitration agreement and could not bring an individual Title VII claim in court. Finding that the EEOC has a mandate broader that just making the victim of discrimination whole, the Supreme Court in Waffle House allowed the EEOC to pursue monetary relief against the employer to vindicate both the public and private interests served by Title VII.
My guess is that this decision might cause Sidley Austin to think long and hard about settling this case now since the former partners had salaries in the $400,000 to $600,000 range and there are about 30 of them in the class.
Hat Tip: Marty Malin
Public Employee Speech Case To Be Reheard By Supreme Court
Appearing to point to a 4-4 split in its membership with the retirement of Justice O'Connor, the United States Supreme Court has decided to rehear the public employee speech case of Garcetti v. Ceballos with Justice Alito now as its ninth member. The Ceballos case had been originally argued in mid-October 2005.
Ceballos deals with a Los Angeles district attorney who blew the whistle on his superiors when he discovered a flawed search warrant and, for his effort, he was subsequently removed from the case and demoted. At stake is whether the First Amendment protects employees like Ceballos when they make such comments in the course of their regular work duties. The City of Los Angeles maintains that since he was merely speaking on a subject that concerned particularly his job, he was not speaking on a matter of public concern in the sense that it was not a matter of communal interest. Ceballos maintains that the integrity of the justice system should be considered a matter of public concern.
With Justice Alito now being the deciding vote, look for him to vote for the employer and find that the employee does not have any First Amendment free speech protections under these circumstances. Indeed, it looks like this will be Justice Alito's first significant employment law vote where he will cast the deciding vote. Justice O'Connor, on the other hands, appeared a little more employee-friendly in such previous cases like Umbehr (US 1996).
For more background on the case, including the fact that the new oral argument should occur in March or April, see the SCOTUS Blog.
February 17, 2006
Smoking at Work: The Battle Continues
It is always nice when what you're teaching in class coincides with what's being reported in the news. Over the last week, we have been covering privacy in the workplace and, in particular, the right of an employer to tell an employee what he or she may do when away from work.
One of the more controversial areas, and indeed the area that probably generates the most heated discussion in my employment law class during the semester is whether employers may only hire non-smokers or fire employees who refuse to quit smoking. Generally, the non-smokers agree that the employer has the right to hire and fire whom they want in this regard, while the smokers as a group think it is an inappropriate invasion of their privacy to condition their employment on their smoking habits.
Previous posts on this blog have discussed how employers are increasingly attempting to regulate their employee's off-duty conduct behavior in the areas of losing weight, living healthier lifestyles, and, of course, smoking cessation.
Now, CNN.com reports that a growing number of employers are not necessarily requiring their employees to stop smoking, but if they do continue to smoke, they are charging them higher health insurance premiums. From the article:
A growing number of private and public employers are requiring employees who use tobacco to pay higher premiums, hoping that will motivate more of them to stop smoking and lower health care costs for the companies and their workers.
Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines are among the companies already charging or planning to charge smokers higher premiums. The amounts range from about $20 to $50 a month.
[A] general benefits survey of 950 U.S.-based employers last year showed that at least 41 percent used some form of financial incentives or penalties in their health care plans.
[E]stimates [are] that at least 8 percent to 10 percent of the businesses probably aimed some of the incentives or penalties at smokers and . . . that percentage is growing.
Some may say that this is perhaps the best way of dealing with those parts of an employee's off-duty behavior that actually do come back and adversely impact the employer's bottom line. In short, "If you want to engage in destructive behavior fine, but I'm not going to pay for it."
I want to open the employee off-duty conduct debate again to the readers of this blog and ask whether a carrot, stick, both, or neither, is the best policy when employers are addressing the smoking behavior of their employees.
Obit: Edmund Flynn, Labor Lawyer
Edmund Flynn died Jan. 11 of complications from Alzheimer's disease. He was 89 and had recently moved to Colorado Springs.
Mr. Flynn's first job as an attorney was on the Washington staff of the National Labor Relations Board. A few years later, he served as counsel at the Printers' Union.
After a decade in the nation's capital, Mr. Flynn moved his family to Salt Lake City to represent Kennecott Copper Corp. in negotiations with miners' unions. Much of his work took him to New York to help with the company's mining operations abroad.
In 1969, Mr. Flynn moved to San Francisco to head the Pacific Maritime Association, which represented 120 shipping and stevedore companies.
Citigroup Exec Bound by Arbitration Language in Employee Handbook
A former executive of Citigroup Inc., who has sued the bank for discrimination, has lost his bid to have his case tried in federal court.
Reuters reports that a US District Court judge has ruled that Ramesh Menon, a naturalized citizen of Indian descent, is bound by a clause in the Citigroup employee handbook that requires arbitration of disputes.
The judge's order said, "Plaintiff's assumption of the obligation to arbitrate was manifested by his decision to continue ... employment," the news report said. A Citigroup spokeswoman said the bank is pleased with the court’s decision.
I must say that I do not agree with this decision.
Not only do most courts find language in a employee handbook not to create an employment contract (in fact, most have language insuring that the employee stays at will), but arbitration agreements in the non-union context usually must have some indicia indicating that the employee has voluntarily and knowingly waived his right to the judicial forum.
Even if the employee signed an acknowledgment form saying that he read and understood the employee handbook and agreed to its terms, including the arbitration provisions, I would argue that such an acknoweldgement is not sufficient when you're talking about an employee giving up an important right like the right to have his discrimination claim heard in a judicial forum.
Indeed, in some jurisdictions, arbitration agreements must be written in such a manner that the waiver of such rights are prominent and conspicuous (and not buried in an employee handbook with a multitude of other provisions). Some jurisdictions even go so far as requiring that the waiver language be bolded and/or in a larger font so that there is no mistake as to what the employee is agreeing.
In short, I'm as much a fan of arbitration as the next person, but only when I know that both parties have agreed to the arbitral forum with open eyes. Even with a sophisticated executive like the one involved in this case, it is still important that the employee understand what impact such handbook provisions might have on his future rights to a judicial forum.
That doesn't seem to have been the case here.
Symposium on Gender and the Workplace
The William and Mary Journal of Women and the Law will host a symposium on current developments in gender and the workplace on Saturday, Feb. 25, from 10:30 a.m. to 4:15 p.m. Speakers will include:
- Jayne W. Barnard (left), William & Mary Law School: More Women on Corporate Boards? Not Necessarily.
- Judy Conti, Co-Founder and Executive Director, D.C. Employment Justice Center: The Family and Medical Leave Act and Beyond: How the Modern Workplace and Workplace Law Are, Are Not, and Are Trying to Accommodate the Realities of Family Life and Responsibilities.
- Glenn George, University of North Carolina Law School: Employer Liability for Sexual Harassment.
- Jennifer Goldstein, Senior Attorney, Equal Employment Opportunity Commission: When Does the “Equal Opportunity Harasser” Violate Title VII? Current Developments in Gender Harassment Law.
- Joseph Sellers (right), Partner, Cohen, Milstein, Hausfeld, & Toll: The Plight of Women in Today’s Workplace: The Implications of Dukes v. Wal-Mart Stores, Inc.
- Kathi Westcott, Deputy Director for Law, Servicemembers Legal Defense Network: Women, Youth, and the Poor: “Don’t Ask, Don’t Tell’s” Greatest Casualties.
February 16, 2006
MSHP Proposes to Raise Penalties for Mine Safety Infractions
Today the Mine Safety and Health Administration (MSHA) announced it intends to modernize decades-old regulations governing penalty assessments for violations of the Mine Safety and Health Act, or Mine Act. MSHA will initiate new rulemaking to propose revisions to the penalty structure, including increases in penalties.
“MSHA’s current penalty structure is 25 years old and needs updating to strengthen incentives for compliance,” said David Dye, acting MSHA administrator. “Mine safety violations put workers at risk, so the penalties for those violations need to be serious and straightforward. Updating the penalty structure will advance MSHA’s goal of sending every miner home safely at the end of his or her shift.”
Congress sets the maximum level of penalties MSHA can assess for violations of the Mine Act. L egislation to raise the maximum penalty MSHA can assess from $60,000 to $220,000 for flagrant violations has already been sent to Congress.
"Friends" Sex Harassment Suit Appears On the Verge of Dismissal
On Tuesday, the justices of the California Supreme Court seemed inclined to keep their fingers -- and jurors' second-guessing -- out of the creative process that helped breathe life into [Joey Tribbiani's] sex-obsessed character, and others, on the sitcom "Friends."
The court, in a case televised live by the California Channel, had been asked to rule that writers' sexually crude comments and simulations while hashing out TV scripts could constitute sexual harassment serious enough to cause a hostile work environment, especially for women and minorities.
But the six justices on hand for oral arguments appeared uncomfortable with the thought of forcing writers to curb their thoughts, words and actions even if they often push the boundaries of sexual harassment.
The rest of the article here.
This outcome would appear right to me as the women who brought the claim appears to have been warned up front about the racey language used by the writers in coming up with the scripts. Consequently, it might be hard for her to argue that the conduct was unwelcome (as it appears she consented to it) or that a reasonable person in her circumstances would find the writers' actions caused an abusive or hostile work environment.
Bad Idea Jeans II: Professor Fired for Showing Controversial Cartoons in the United Arab Emirates
An American professor teaching in the United Arab Emirates was fired last week after she showed her students caricatures of the Prophet Muhammad that have infuriated Muslims around the world, local newspapers reported.
Claudia Kiburz, who taught English at Zayed University, a women's institution in Dubai, shared the cartoons with her students as part of a class discussion about freedom of expression, the news reports said.
OK, I can understand sharing these cartoons with American students in the United States where such values as academic freedom, freedom of the press and freedom of speech are cherished values. But in the United Arab Emirates (BTW, how in the world did she get it into the country in the first place?)
Here is what the UAE Minister of Education had to say about the incident and his understanding of freedom of expression and tolerance:
"Despite the freedom of expression and tolerance that we have in our country and all academic institutions, the professor of English at Zayed University has no right to behave like this," Sheikh Nahyan said in a written statement that was published in local newspapers. "We can never accept any offenses against Islam, or any of its teachings and noble values."
Sharing this cartoon in a university classroom in the UAE? Quite simply: Bad Idea Jeans.
Ohio State Basketball Coach Wrongly Terminated
CBS Sportsline.com is reporting:
Ohio State, awaiting a decision on possible penalties for NCAA rules violations under former basketball coach Jim O'Brien, could have to pay him millions of dollars for firing him under a judge's ruling Wednesday.
O'Brien claimed the university improperly fired him in June 2004 for loaning $6,000 of his own money to a recruit.
Ohio Court of Claims Judge Joseph T. Clark ruled O'Brien broke his contract by giving the loan and failing to inform university officials, but the error was not serious enough to warrant firing. The university violated the contract by firing him without compensation, the ruling said.
The 55-year-old O'Brien sued for $3.5 million in lost wages and benefits. The award, which could reach nearly $9.5 million with interest and other damages, will be determined after another hearing.
A provision of his contract said the NCAA had to rule on alleged violations before [O'Brien] could be fired for that reason.
Ohio State President Karen Holbrook testified that she didn't have to wait to hear from the NCAA how serious the violation was.
The judge disputed the university's claim that O'Brien acted in bad faith by loaning the money and then covering up what he had done for more than five years.
I guess what bothers me about this decision is that even if there is a provision in the contract that says you can't fire a coach until there are actual NCAA violations assessed against the school, the school had more reasons than just the potential NCAA violations to fire this guy based upon his less than forthright actions (read dishonesty) and their clear, adverse impact on the OSU athletics program and the larger school community. If there is not "just cause" to fire this guy in this case, I'm not sure where you would find it.
Also, under the well settled principle of institutional academic freedom and the high degree of deference that courts usually afford to universities concerning their academic judgments, this decision appears to fly in the face of decades of precedent dealing with such issues.
In sum, this all just seems ludicrous to me (and to columnist Gregg Doyel at Sportsline as well, though for different reasons). Here's hoping the University appeals. Bad actors should not be awarded for their blatant malfeasance.
Court Upholds Governor's Right to Forbid Government Workers From Talking to Newspaper
The Fourth Circuit Court of Appeals has held that Governor Bob Ehrlich of Maryland can forbid government workers from speaking to two newspaper reporters with the Baltimore Sun without violating the reporters' First Amendment rights. The decision is here.
Specifically, the Governor's ban prevented state executive branch employees from speaking with Sun reporter David Nitkin and columnist Michael Olesker, who has since left the paper. According to the BaltimoreSun.com, "The governor had contended that the two journalists had been unfair in their coverage of him and his administration, and sought to inhibit such coverage by denying them access to his staff."
The court found that the First Amendment rights of the reporters had not been violated because they did not believe the governor's directive "created a chilling effect any different from or greater than that experienced by The Sun and by all reporters in their everyday journalistic activities." Moroever, the court found the newspaper reporters "have not been chilled to any substantial degree in their reporting, as they have continued to write stories for The Sun, to comment, to criticize, and otherwise to speak with the full protection of the First Amendment." In short, the Fourth Circuit "weighed whether the reporters had been prevented from doing their jobs and concluded that they had not.
To me, what is more interesting from a public employment perspective are the rights of Governor Ehrlich's staff to talk to these newspaper reporters if they had so desired. Under the Connick/Pickering line of cases dealing with the First Amendment rights of public employees, it would seem such activity on the part of the government workers would be protected as long as the workers were speaking out on a matter of public concern and did not cause a substantial disruption to their employer.
Thus, although the First Amendment press rights of these reporters were found not to be violated in this case, there would have most likely been a different outcome if the First Amendment speech rights of public employees had been at stake.
February 15, 2006
EEOC FY 2007 Budget
The EEOC's Fiscal Year 2007 Budget request to Congress is available online. The agency is asking for $322,807,000, which is $4.2 million less than FY 2006.
NYC Equal Benefits Law Struck Down by NY High Court
Update: Ross' Employment Law Blog has more analysis of this decision, with the additional information that the court also found the NYC law preempted by ERISA.
365Gay.com is reporting that the New York Court of Appeals (the highest state court in NY) has found New York City's Equal Benefit Law invalid.
From the story:
The law would have required contractors that do more than $100,000 of business each year with NYC to offer benefits to the partners of gay and lesbian workers equal to those the companies give heterosexually married couples.
The legislation would have made health coverage available to tens of thousands of additional people in the New York City region and because many companies which do business with New York are national corporations it could also provide same-sex benefits to hundreds of thousands of people across the country.
An appeals court overturned that ruling, saying the city statute conflicted with competitive bidding requirements in state law and was invalid.
Tuesday, in a 4-3 decision, the Court of Appeals upheld the appeals court, saying state and federal laws took precedence over the city law.
Working America Website Helps Track Workers' Injuries
Nearly 100 years after Upton Sinclair wrote The Jungle, a new workplace safety watchdog has emerged. Job Tracker, an online database launched late last year by a group called Working America, lists safety and health violations and related data for more than 60,000 U.S. companies. Browsers can use the site to call up details on a company's injury rate and specific violations cited by the federal Occupational Safety and Health Administration, as well as any workplace fatalities or catastrophic incidents.
The database--which was culled from OSHA records, documents obtained via Freedom of Information Act requests, and material gathered by the website Opensecrets.org--provides safety information dating back to January 1, 2000.
Working America, an AFL-CIO affiliate, also tracks companies that are on "OSHA watch," meaning they have received letters from the government urging them to remove workplace hazards that are tied to high rates of occupational injury and illness. (A watch letter also conveys to a company that it may be the subject of future inspection.)
You can access Job Tracker here. It also provides information on companies found in violation of the National Labor Relations Act (NLRA).
3rd Circuit Quorum: Demonstration at Shareholders Meeting Not a Prohibited Stirke
In the case of Engelhard Corp. v. NLRB (3d Cir. Feb. 14, 2006), the Third Circuit determined that the Board properly found that a group of employees (38 employees) were improperly suspended for engaging in a demonstration at the company's annual shareholder meeting. Although the company had argued that such a demonstration was in violation of the collective bargaining agreement's no-strike clause, the Board and the Third Circuit disagreed.
Specifically, the Third Circuit, in the voice of Judge Ambro, found:
Because the Union’s activity at the shareholders’ meeting could not reasonably have been expected to, and in fact did not, lead to the suspension of any work at the Peekskill plant, we hold that activity was not prohibited by [the no-strike provision] of the CBA.
Interestingly, Justice Alito was on the panel that heard oral arguments in this case, but he did not participate in the decision. Consequently, the case was decided by a quorum made up of the two remaining judges.
Appellate question for readers out there (this means you Howard): Are such decisions by quorum unusual or as a matter of regular practice?
Hat Tip: Objective Justice
NYC Transit Union Sued by Firefighter Hurt on Bike During Strike
Law.com's Employment Law Practice Center is reporting that a firefighter who was severely injured while riding his bike during the recent NYC Transit Strike (after he was hit by a private bus transporting Bear Stearns workers), has sued the Transportation Workers Union (TWU), along with a number of other parties.
Although I don't know the lawsuit's chances with regard to the other name parties, the prospects of the firefighter collecting against the TWU appear to be small. As explained in a previous post (and the excellent comments thereto), such strike-related suits against unions for damages caused to third parties as a result of a strike are not look favorably upon.
These previous cases dealt with damages to business interests caused by a strike and not a personal injury suit where the injuries are alleged to have been caused in an indirect way by the strike, but it would appear the same general principles would apply.
And in any event, wouldn't principles of proximate cause significantly limit the possibility of the plaintiff recovering?
$89 Million Overtime Settlement: UBS Financial Advisors and Trainees
Hopefully at this point companies are starting to get the idea that you just can't flip a coin and determine whether your employees are exempt or non-exempt for purposes of the Fair Labor Standards Act (FLSA).
From Lawyers and Settlements:
Current and former employees filed a class action lawsuit against the Swiss financial services bank alleging underpaid overtime. The class claimed UBS shortchanged employees by improperly classifying financial advisers and trainees as exempt under federal law from overtime compensation. USB has reached an agreement to settle the class action suit for up to $89 million.
The rest of the story is here.
February 14, 2006
Think 401(k) Plans Provide More Security Against Employer Failures? Think Again
The reason is quite simple: whereas employers are responsible for making sure the funds are there when the employee retires under a defined benefit plan, defined contribution plans like 401(k) plans are an employee's responsibility once an employer makes the appropriate pension contribution to the employee's individual account. Thereafter, the funds (with the exception of matching contributions which take time to vest) belong immediately to the employee. Hence, there is insurance provided by the government through the Pension Benefit Guaranty Corporation (PBGC) for defined benefit plan terminations, but no such insurance for defined contribution plans.
Thus, it has been roundly assumed that since 401(k) plan participants own their pension accounts from the start, employees with 401(k) plans have to less worry about when their employer goes under.
Yet, this is not necessarily so. Robert Matthews of the Wall Street Journal explains the potential difficulties for 401(k) participants when their company becomes defunct:
Participants in 401(k) plans are protected from their employer's failure because they actually own the assets in their accounts - unlike employees with traditional pension plans, such as the one run by United Airlines, which the government took control of late last year. That means they can get access to their funds or take them along when they leave their job.
But a growing number of individuals who had 401(k)s through small companies that are now defunct find that getting control of their money can take years. By statute, if there's no one from the former employer authorized to approve a rollover, the financial-services company that manages the plan cannot release the money - which means it can take intensive sleuthing and a lot of patience to recover it.
Recognizing the problem, the Labor Department is about to propose new rules that could make the process easier and quicker. The rules, which the department plans to unveil this spring and hopes put into effect by year end, would authorize financial institutions to release the money to workers in such situations.
Given the increased number of employees with 401(k) plans at smaller companies, which have a higher likelihood of going belly up, this initiative by the Labor Department is certainly a welcome development and will hopefully go along way in giving 401(k) participants quicker access to their pension funds when these scenarios arise.