January 6, 2007
Top-5 International Employment & Labor Law SSRN Downloads
- Jennifer Gordon, Transnational Labor Citizenship (58).
- Scott Cummings (photo above), The Internationalization of Public Interest Law (51).
- Howard F. Chang, The Economic Impact of International Labor Migration: Recent Estimates and Policy Implications (27).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky CEOs (912).
- Lily Batchelder, Fred T. Goldberg, & Peter R. Orszag, Efficiency and Tax Incentives: The Case for Refundable Tax Credits (162).
- Stephen F. Befort, The Perfect Storm of Retirement Security: Fixing the Three-Legged Stool of Social Security, Pensions, and Personal Savings (137).
- Takeshi Yamaguchi, Olivia S. Mitchell, Gary R. Mottola, & Stephen P. Utkus, Winners and Losers: 401(k) Trading and Portfolio Performance (102).
- Debra A. Davis (photo above), Do-It-Yourself Retirement: Allowing Employees to Direct the Investment of Their Retirement Savings (65).
Supremes to Hear Employment Cases
While Paul and I were at the AALS conference this week, the Supreme Court granted certiorari on two employment cases. The first, EEOC v. BCI Coca-Cola Bottling Co. (link is to 10th Circuit decision), involves the issue of whether an employer is liable for discrimination in a discharge case where the h.r. manager making the discharge decision had no discriminatory animus, but the discharged employee's direct supervisor arguably did. The second, Long Island Care at Home, Ltd. v. Coke (link is to 2d Circuit decision), involves the deference due to a FLSA regulation interpreting the exemption for persons providing babysitting and "companionship services."
Labor Law Giant Bernard Meltzer Passes Away
I am sorry to have to report the passing of one of the true giants in the area of labor law, Bernard Meltzer. Professor Meltzer, who taught for many years at the University of Chicago School of Law, passed away this past Thursday.
Here is a link to Chicago's Memorial Notice on Professor Meltzer.
Hat Tip: Brian Leiter
January 5, 2007
More Problems With A Potential Guest Worker Program
Immigration officials are reporting that they lack the ability to handle the significant uptick in residency applications that would follow proposed changes in immigration laws, including a guest worker program. As the Washington Post reports:
U.S. Citizenship and Immigration Services (USCIS) officials have determined that the troubled, $2-billion-a-year agency is unable to effectively manage its existing work, much less a flood of new applications. A report released Dec. 20 by Homeland Security Inspector General Richard L. Skinner cited a long list of setbacks and concurred with internal USCIS reviews that the bureau "lacks the processing capacity, systems integration and project management resources needed to manage a potential increase in workloads." . . . Many legal immigrants already face years-long waits when they apply for green cards, often a first step toward obtaining citizenship. Another 100,000 names submitted to the FBI for background checks have been on hold for a year or more. Congressional auditors recently reported that 14 immigration offices had lost track of 111,000 files as of July.
This report should come as a surprise to no one, but it's disheartening nonetheless. It also confirms my general view that no matter what, if anything, comes out of Congress on this issue, very little will change on the ground.
January 4, 2007
Major Decline in NLRB Representation Petitions
Just to pick up on Rick's post yesterday about the NLRB General Counsel's fiscal year 2006 report: As noted by BNA's Daily Labor Report (subscription required), representation petitions with the NLRB fell a stunning 25.6% from fiscal year 2005. The DLR failed to mention that a significant portion of that decline appears to have resulted from a large, one-time increase in petitions from a single regional office in 2005, yet omitting that factor still results in an impressive 11% decrease (which is consistent with the 15.4% decline in initial elections during the same period).
It's unclear to me what caused these sharp reductions. New union density numbers will not be released until February or March, but I doubt that declines in union membership or coverage will come close to 11 or 15%. This drop is even more surprising given the Change to Win federation's renewed stress on organizing. Perhaps unions' increased interest in non-NLRA organizing is a factor, but I still don't see anything that would cause petitions to fall this fast. Any thoughts?
Precarious Work, Women, and the New Economy
Congratulations to Judy Fudge and Rosemary Owens on the publication of their new book, Precarious Work, Women, and the New Economy: The Challenge to Legal Norms. Here's a description:
Globalisation, the shift from manufacturing to services as a source of employment, and the spread of information-based systems and technologies have given birth to a new economy, which emphasises flexibility in the labour market and in employment relations. These changes have led to the erosion of the standard (industrial) employment relationship and an increase in precarious work - work which is poorly paid and insecure. Women perform a disproportionate amount of precarious work. This collection of original essays by leading scholars on labour law and women's work explores the relationship between precarious work and gender, and evaluates the extent to which the growth and spread of precarious work challenges traditional norms of labour law and conventional forms of legal regulation. The book provides a comparative perspective by furnishing case studies from Australia, Canada, the Netherlands, Quebec, Sweden, the UK, and the US, as well as the international and supranational context through essays that focus on the IMF, the ILO, and the EU. Common themes and concepts thread throughout the essays, which grapple with the legal and public policy challenges posed by women's precarious work.
Contributors include: Diamond Ashiagbor, Stéphanie Bernstein, Susanne D Burri, Joanne Conaghan, Sandra Fredman, Judy Fudge, Allison Hoffman, Rosemary Hunter, Claire Kilpatrick, Rosemary Owens, Kerry Rittich, Vicki Schultz, Katherine VW Stone, Leah F Vosko, Jenny Julén Votinius.
NLRB General Counsel Issues FY 2006 Report
NLRB General Counsel Robert Meisburg has posted a Report on FY 2006 Operations, summarizing the operations of field and headquarter offices.
AFL-CIO and UFCW Sue DOL Over Failure to Promulgate OSHA Rule
Here is a recently-filed lawsuit that was brought to my attention by a reporter at Marketplace, the NPR radio program. The AFL-CIO and the United Food and Commercial Workers (UFCW) have sued the Department of Labor (DOL), and really more specifically the Occupational and Safety and Health Administration (OSHA), for failing to put into place a long promised regulation to require employers pay for personal protection equipment (PPE), mandated by other OSHA standards.
Apparently, since 1999, OSHA has been promising to put into place the employer PPE pay standard, but has consistently delayed putting out final regulations. The AFL-CIO and the UFCW have had enough and are now suing to compel the standard to be put into place.
As far as I know, I am not aware of a plaintiff in the past being successful in compelling a federal agency to issue a rule. There might be an action for mandamus under the Administrative Procedure Act (APA), but that would require review of an arbitrary and capricious decision made by OSHA. The problem here, as I understand it, is that OSHA has never made any decision and has just not acted with regard to the PPE pay regulation. In such circumstances, it probably will be very difficult for the labor unions to succeed in forcing OSHA to issue the desired rule.
In any event, it is interesting litigation and has the potential to set important labor/administrative law precedent, so stay tuned.
Wal-Mart's Flexible Work Schedules
Yesterday's Wall Street Journal describes Wal-Mart's new system for scheduling workers, which is flexible for the company but certainly not for workers: Wal-Mart, "using a new computerized scheduling system, will start moving many of its 1.3 million workers from predictable shifts to a system based on the number of customers in stores at any given time. The move promises greater productivity and customer satisfaction for the huge retailer but could be a major headache for employees." Diane Pfadenhauer, over at Strategic H.R. Lawyer, asks: "has anyone thought about the possible increased recruiting and retention expenses that companies will incur as they try to lure people into these unstable jobs? Also, what about productivity? Will it make firms more productive, or will employees resent the whole system?"
January 3, 2007
The Prevalance of Bad Bosses
A few weeks ago, I posted an article on how American bosses, along with their Mexican counterparts, were considered to be pretty good by their employees.
Now comes another study that says not so fast. From FoxNews.com (via the AP):
For most people, it's back to work Tuesday after a holiday weekend with family and friends. And for many, a new study shows, it will be under a bad boss. Nearly two of five bosses don't keep their word and more than a fourth bad mouth those they supervise to co-workers, the Florida State University study shows.
And those all-too-common poor managers create plenty of problems for companies as well, leading to poor morale, less production and higher turnover.
Employees stuck in an abusive relationship experienced more exhaustion, job tension, nervousness, depressed moods and mistrust, the researchers found. They found that a good working environment is often more important than pay, and that it's no coincidence that poor morale leads to lower production.
So which survey is more accurate? Well, I guess it not only depends on whom you work for, but also whether there is likely to be over- or under-reporting of supervisory abuses depending on the industry and how the survey questions are asked in the first place.
One thing is for sure, however: as long as there are bosses, there will be unhappy subordinate employees.
Hat Tip: Miriam Cherry
Need a Job? Just Complete This Algorithm
Well, Google has now brought some of that know-how to hiring new employees for its organization.
Have you ever made a profit from a catering business or dog walking? Do you prefer to work alone or in groups? Have you ever set a world record in anything?
The right answers could help get you a job at Google.
Google has always wanted to hire people with straight-A report cards and double 800s on their SATs. Now, like an Ivy League school, it is starting to look for more well-rounded candidates, like those who have published books or started their own clubs.
Desperate to hire more engineers and sales representatives to staff its rapidly growing search and advertising business, Google — in typical eccentric fashion — has created an automated way to search for talent among the more than 100,000 job applications it receives each month. It is starting to ask job applicants to fill out an elaborate online survey that explores their attitudes, behavior, personality and biographical details going back to high school.
The answers are fed into a series of formulas created by Google’s mathematicians that calculate a score — from zero to 100 — meant to predict how well a person will fit into its chaotic and competitive culture.
As Dana Nguyen (who provided the heads up for this article) points out, this is not that new to employment law. Employers have been using tests like the Wonderlic test to determine which employees are best for their organizations for years.
But leave it to Google to take it to an entirely new level. I mean how many employers ask applicants about when they first got excited about computers?!
January 2, 2007
Adverse Actions and the Title VII Prima Facie Case
One of the elements of the Title VII prima facie case is to show that an adverse employment action has been taken against the plaintiff. When there is a failure to hire or firing, this is a straightforward element to meet.
But what if an employee is put on paid administrative leave pending the outcome of a criminal investigation? In the recent case of Joseph v. Leavitt, No. 05-3348-cv (2d Cir. Sept. 13, 2006), the
Court examined that exact issue in the context of a FDA employee who
was suspended after being arrested for domestic abuse and drug use.
Agreeing with four other circuit courts that examined the question, the court found, "The terms and conditions of Joseph's employment did not include a right to expect that he would be allowed to continue his responsibilities while he was facing serious criminal charges." As long as his leave was with pay, the company action was not adverse and a Title VII race discrimination claim was not possible.
Hat Tip: HR.BLR.com
Legal Realism and Employment Discrimination
Law & Social Inquiry
Volume 31, Number 4, Fall 2006
Symposium: New Legal Realism
- Mitu Gulati (top row, left) & Laura Beth Nielsen (top row, second), Introduction: A New Legal Realist Perspective on Employment Discrimination, p. 797.
- Cheryl R. Kaiser (top row, third) & Brenda Major (top row, right), A Social Psychological Perspective on Perceiving and Reporting Discrimination, p. 801.
- John M. Conley (bottom row, left), Tales of Diversity: Lawyers’ Narratives of Racial Equity in Private Firms, p. 831.
- Alexandra Kalev (bottom row, second) & Frank Dobbin (bottom row, third), Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time, p. 855.
- Nicholas Pedriana (bottom row, right)& Amanda Abraham, Now You See Them, Now You Don’t: The Legal Field and Newspaper Desegregation of Sex-Segregated Help Wanted Ads 1965-75, p. 905.
New BJELL Issue
Berkeley Journal of Employment and Labor Law
Volume 27, Number 2, 2006
- Katherine V.W. Stone (left), Legal Protections For Atypical Employees: Employment Law For Workers Without Workplaces and Employees Without Employers, p. 251.
- Norman D. Bishara, Covenants Not To Compete in a Knowledge Economy: Balancing Innovation From Employee Mobility Against Legal Protection For Human Capital Investment, p. 287.
- Cheryl L. Anderson (center), What Is ‘Because of the Disability’ Under the Americans With Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine, p. 323.
- Robert C. Bird (right) & Niki Mirtorabi, Shiftwork and the Law, p. 383.
- Andrea Giampetro-Meyer, Standing in the Gap: A Profile of Employment Discrimination Plaintiffs, p. 431.
- Sarah Stewart Holland, Pregnancy in Pieces: The Potential Gap in State and Federal Pregnancy Leave, p. 443.
- David Rosenfeld, Worker Centers: Emerging Labor Organizations - Until They Confront The National Labor Relations Act, p. 469.
- Paul F. Kirgis, The Contractarian Model of Arbitration and Its Implications for Judicial Review of Arbitral Awards, 85 Oregon L. Rev. 1 (2006).
- Beverly Cohen, Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs' Treating Physicians: A Guide to Performing HIPAA Preemption Analysis, 42 Houston L. Rev. 1091 (2006).
- Debra L. Steagall (center) & Monica H. Khetarpal Sholar (right), Survey of Illinois Law: Employment Law, 30 S. Ill. U. L.J. 613 (2006).
Comments & Notes
- Matthew M. Cannon, Mending a Monumental Mountain: Resolving Two Critical Cricuit Splits Under the Americans with Disabilities Act for the Sake of Logic, Unity, and the Mentally Disabled, 2006 B.Y.U. L. Rev. 529.
- Morgan Fife, Predator in the Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations, 2006 B.Y.U. L. Rev. 569.
Harry Arthurs Posts Final Report of the (Canadian) Federal Labour Standards Review Commission
Harry Arthurs, in his capacity as sole Commissioner of the Federal Labour Standards Review Commission, has posted on SSRN the Commission's Final Report, entitled Fairness at Work: Federal Labour Standards for the 21st Century.
This article explores the role of labor law and the enforcement of collective bargaining agreements in limiting employer discretion to impose appearance codes that employees find objectionable. A survey of that body of law reveals that it offers covered employees substantial protection from the imposition of appearance codes, and perhaps more protection than any other stautory or common law regulation. However, a closer inspection reveals substantial gaps in that protection. For example, a decreasing percentage of American workers are unionized. Moreover, even among those who are, because unions are majoritarian institutions, they are often not faithful agents for employees asserting positions not shared by the majority, such as, for example, the right to dress at work in a way that does not conform to gender stereotypes. Nevertheless, on balance labor law should be a serious subject of study for those who aim to increase employee agency in appearance. Unions have a strong track record of helping employees retain some measure of workplace autonomy -- an objective consistent with resisting unduly restrictive appearance codes.
January 1, 2007
AALS and Understanding Employment Law
As a number of us get ready to make the pilgrimage to Washington D.C. for the AALS Annual Conference in the next few days, I wanted to pass along that Rick Bales and I will be at the Exhibit Hall in the Marriott to discuss our (along with Jeff Hirsch's) forthcoming Lexis-Nexis Understanding Employment Law book, which is due out in Fall 2007. We should be there on Wednesday (January 3rd) from 12:00 to 12:30.
Please come by to learn about the book or just to say hello.
Determining the Contours of a Negligent Hiring Claim
One of the more underdeveloped areas of employment law is the doctrine of negligent hiring or negligent retention. Because employees who cause harm to a third party in these situations are generally not acting in the scope of their employment, there is no vicarious liability which can be imputed against the employer. Assuming the harmed third party wants to sue a deep-pocket defendant, another way that these plaintiffs seek to hold employers liable is by arguing that the employer was negligent in hiring or retaining an employee who had known violent propensities.
This is a hard showing for plaintiffs to make as the following case from HR.BLR.com demonstrates. In Cole v. American Community Services, No. 2:04-cv-738 (S.D. Ohio Oct. 17, 2006):
Joseph Cole and his wife and stepdaughter were at their home in Westerville around 8 p.m. on an April evening in 2003 when Sean Marcelis, who was selling magazines on behalf of a company called American Community Service (ACS), rang their doorbell. Cole, who answered the door, turned him down, but then, Cole said, Marcelis stuck his foot in the door, pushed the door open, shouted at Cole, and refused Cole's requests that he leave.
Then, Cole said, Marcelis crossed the threshold into Coles' home, yelled at Cole, threatened to beat him, and shoved him backwards into a wall. Cole asked his wife to call the police and maneuvered Marcelis into the front yard.
Cole lost the case, however, because "[he] didn't show that ACS knew or should have known of Marcelis's alleged tendency toward criminal, tortious, incompetent, or dangerous conduct." Specifically, "ACS showed that Marcelis had never been arrested or jailed, or even had a customer complaint filed against him, prior to the incident at hand."
All this being said, employers are not free to bury their heads in the sand like an ostrich. For instance, there could be liability for an employer if they didn't conduct a routine criminal background check which would have indicated that the employee had violent propensities. There is also some controversy in this area about whether psychological or personality testing should be required, especially with employees who have customer contact, in order to determine the likelihood of their harming third parties. The problem is that it is difficult to know whether these tests are good predictors of behavior and these tests themselves can lead to separate legal problems if not administered properly or if inappropriate invasive questions are asked.
In any event, an interesting area of the law to keep an eye on.