Saturday, March 24, 2007
The National Labor Relations Board’s website has been recognized as one of the five best in the Federal Government in a Report issued by the National Security Archive (NSA), a nongovernmental research institute and library located at George Washington University. The other four outstanding websites are those of the Department of Justice, the Department of Education, the Federal Trade Commission, and the National Aeronautics and Space Administration.
The NSA audited the websites of 158 agencies, including the NLRB, to determine their compliance with the 1996 Congressional amendment to the Freedom of Information Act (FOIA) that required agencies to put more public information on their web sites.
The NLRB site contains a searchable database of case information on cases pending before the Board and at the Regional Offices. The site allows users to transact business online with the agency more easily. Several important enhancements include “My NLRB” that allows users who E-file documents to establish their own accounts in order for the system to automatically fill in data fields on E-filing forms.
City commissioners early Saturday finalized the firing of a city manager who is seeking a sex-change operation, despite pleas from dozens of impassioned supporters to save his job.
After a six-hour hearing, the commissioners decided to fire 48-year-old Steve Stanton after his announcement that he planned a new life as a woman. The move came after the commission voted 5-2 last month to suspend him with pay.
Commissioners contended Stanton was being fired because they lost confidence in him, not because he wants to be a woman.
"I think we're pretty well convinced," Commissioner Gay Gentry said. "You have to believe us, you have to trust us, it is not about transgenderism."
I, for one, do not trust Commissioner Gentry one iota. In fact, although the city's legitimate non-discriminatory reason for firing Stanton appears to be that he bullied other employees (Jillian Weiss also points out that other articulated bases included issues of dishonesty, untrustworthiness and disruptiveness), such concerns only came to the fore after Stanton announced that he planned to go under gender reassignment surgery to become a woman in Summer 2008. Also, prior to his announcement, Stanton received good performance reviews and a large raise in pay. Seems like a pretty good pretext case based on just an initial analysis of the surrounding facts.
The City of Largo should hope that if Stanton decides to sue that transgenderism is not considered a form of sexual discrimination under federal or state law in Florida.
Finally, one resident of Largo had this to say at the Stanton hearing: "I don't want the city of Largo to be the poster child for bigotry and discrimination."
Friday, March 23, 2007
Back in January, we wrote about how the AFL-CIO and other groups had sued OSHA to force them to promulgate a personal protection equipment (PPE) standard. We wondered whether a lawsuit could force the agency to issue a rule, but apparently OSHA has now agreed to issue such a rule by the Fall (via HR.BLR.com):
The Department of Labor says it plans to issue a final rule in November to cover when an employer is required to pay for personal protective equipment (PPE) for employees.
The AFL-CIO and the United Food and Commercial Workers International Union (UFCW) said the department disclosed its intentions in court papers it submitted in response to a lawsuit filed by the unions. In the lawsuit, the unions asked a court to order the Occupational Safety and Health Administration to issue a final rule on who pays for PPE.
However, even if OSHA follows through and issues such a rule, it is not clear to me that such a standard would not be litigated to the hilt through the agency and courts. In other words, I think this dispute is far from being over.
However, even if OSHA follows through and issues such a rule, it is not clear to me that such a standard would not be litigated to the hilt through the agency and courts. In other words, I think this dispute is far from being over.PS
There has been some employment discrimination law scholarship in recent years that suggests that perhaps sexual harassment laws have gone too far in desexualizing the workplace, leading to sterile, depressing workplace environments. Of course, under sexual harassment law, employers are given great incentive to not only prevent such harassment through promulgating policies and conducting training of their workforces, but also by responding promptly to any complaint of harassment.
However, this recent poll by Novations Group, reported by HR.BLR.com, suggests that, even if some desire this type of desexualized workplace, we are still far away from completing eliminating sexual banter and remarks from the workplace:
Thirty-four percent of employees say they heard a colleague make an inappropriate remark about sex in the workplace last year, according to a survey by Novations Group, a consulting organization based in Boston.
"Some employers' attitude seems to be boys will be boys," says Tom McKinnon, executive consultant at Novations. "Aside from their possible legal liability intolerant wisecracks or banter, even if innocently intended, are corrosive to employees' individual's sense of safety and acceptance. They undermine productivity, and this ought to hit home among senior management."
Thursday, March 22, 2007
Veronese -- Allegory of Wisdom & Strength
Athletes -- and other employees whose job performance depends primarily on strength and endurance -- may peak in their late 20s. Mental faculties may -- but do not necessarily -- begin to decline at some point in a person's life. Counteracting these effects, however, is experience, which only grows over time. So when are we at our best?
One study, after examining empirical data on consumers making personal-finance mistakes like incurring credit card fees and paying higher-than-market-rate interest, concludes that the answer is age 53. Of course, the peak age for making personal-finance decisions may not be the peak age for litigating a case, papering a deal, teaching in a classroom, or making a key scholarly contribution.
When do you think lawyers hit their peak? Comments are welcome.
For more, see Why Middle Age May Be Healthy For Your Wallet in today's Wall Street Journal (subscription required); Sumit Agarwal et al., The Age of Reason: Financial Decisions Over the Lifecycle.
Camille Hébert (Ohio State) writes to tell us about a call for proposals for an upcoming labor and employment law journal symposium:
The Employee Rights and Employment Policy Journal will be publishing a symposium edition on "The Electronic Workplace," in Volume 12, No. 1 of the Journal. The faculty editors of the symposium edition, Professor Ann Hodges of the University of Richmond School of Law and Professor L. Camille Hébert of the Moritz College of Law at The Ohio State University, seek proposals for articles relating to this topic.
Proposals are due by May 30, 2007; articles will be due August 31, 2007. Professor Hodges can be reached at firstname.lastname@example.org or (804) 289-8909 and Professor Hébert can be reached at email@example.com or (614) 292-0190.
Perhaps you've experienced that sinking feeling when a single keystroke accidentally destroys hours of work. Now imagine wiping out a disk drive containing an account worth $38 billion.
That's what happened to a computer technician reformatting a disk drive at the Alaska Department of Revenue. While doing routine maintenance work, the technician accidentally deleted applicant information for an oil-funded account -- one of Alaska residents' biggest perks -- and mistakenly reformatted the backup drive, as well.
There was still hope, until the department discovered its third line of defense had failed: backup tapes were unreadable.
"Nobody panicked, but we instantly went into planning for the worst-case scenario," said Permanent Fund Dividend Division Director Amy Skow. The computer foul-up last July would end up costing the department more than $200,000.
Some fun additional facts: 800,000 electronic images were lost and the back up paperwork, including the electronic images and other information, was stored in more than 300 cardboard boxes.
I just know there is some jaded large law firm associate out there saying: "What's the big deal? Just another day of document production."
Thanks to Sam Bagenstos at the Disability Law Blog for pointing out this troubling ADA decision from the 7th Circuit: EEOC v. Schneider National, Inc., 06-3108 (7th Cir. Mar. 21, 2007).
Sam sums up the facts of the case:
The EEOC brought the case on behalf of a truck driver who, after being diagnosed with neurocardiogenic syncope (which causes fainting spells) was dismissed from his job. (The company dismissed him even though he had driven over a million miles for them without an avoidable accident.) The company had previously employed a driver with neurocardiogenic syncope, and he had driven his truck off of a bridge and died. Although there was no way of knowing whether the condition caused his accident, the company decided that it was better safe than sorry and adopted a "zero tolerance" policy toward drivers with the condition -- even though it is a treatable condition and federal safety regulations permit people with the condition to drive over-the-road trucks. It was under the "zero tolerance" policy that the company fired the truck driver.
The court, in an opinion written by Judge Richard Posner, upheld summary judgment for the employer and found that the employee was not regarded as disabled under Sutton because "[t]he company recognized that it might be safe for someone with neurocardiogenic syncope to drive trucks -- as the federal safety regulations permit -- but it decided that it didn't want to take that risk." In other words, the ADA does not make an employer maintain the employment of someone they perceive as disabled if they are sufficiently risk averse.
Judge Posner further explains:
The EEOC has confused risk with risk aversion. Two companies might each correctly believe that the risk of a particular type of accident was 1 in 10,000, yet one company, perhaps because it was small, financially fragile, owned by a trust, or as in this case had had an experience of the risk materializing, might be unwilling to assume the risk. That would be a decision irrelevant to liability under the Americans with Disabilities Act, even if that company’s degree of risk aversion was “unique” in its industry. EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 76 (2d Cir. 2003).
Like Sam, I am troubled by the court's decision and reasoning, especially its discussion of risk aversion. It would seem to mean that a company is permitted to discriminate against individuals who have disabilities, or are perceived to have disabilities, based on stereotypical beliefs that the employer has about such disabilities. Sam writes: "Judge Posner seems to be saying that, so long as an employer knows it's acting on the basis of irrational prejudice or fear, it is free to discriminate against people with impairments that aren't really limiting all it wants."
Wasn't the ADA enacted to combat exactly these stereotypes about what disabled individuals are capable of achieving in the workplace? Is this just a further limitation of a law that has been repeatedly narrowed by the courts?
Wednesday, March 21, 2007
Charles Morris and Charlie Craver are circulating a letter_to_the_National_Labor_Relations_Board urging the Board to issue a substantive rule on members-only minority-union bargaining. Here's an excerpt:
It is our view that protecting the employees’ right to organize and bargain through minority unions on a members-only basis will provide useful stepping-stones on a natural route to majority-based Section 9(a) collective bargaining, such as was commonly practiced during the first decade of the Act. And it is our further view that the resulting enhancement of the collective bargaining process will inure to the benefit of both employees and employers and contribute to a healthier economy.
The letter has generated much email discussion. Anyone interested in supporting the letter or learning more should contact Charles Morris.
New research on California schools has found that school district seniority preference language in teacher transfer and leave provisions have no systematic effect on teacher-quality gaps between disadvantaged and affluent schools. Furthermore, districts with strong transfer provisions tend to have larger percentages of credentialed teachers.
Curbing or Facilitating Inequality? Law, Collective Bargaining, and Teacher Assignment Among Schools in California, by William S. Koski (photo above) and Eileen L. Horng, focuses on the legal, policy, and contractual structures designed to place highly qualified teachers in low-income, high-minority schools, as well as those that may constrain efforts to get good teachers into more difficult teaching assignments.
Tuesday, March 20, 2007
In order for there to be an employee benefit plan for purposes of ERISA, both the Dillingham factors (688 F.2d 1367 (11th Cir. 1982)) and the Ft. Halifax test (482 U.S. 1 (1987)) must be met. Dillingham requires the presence of: (a) an intended benefit, (b) an intended beneficiary, (c) a source of financing; and (4) a procedure for claiming benefits. Ft. Halifax adds that there must also be an ongoing administrative scheme.
These necessary prerequisites to ERISA plan formation were clearly missing in the 2nd Circuit case of Guilbert v. Gardner, 04-1003 (2nd Cir. Mar. 7, 2007). Here's a summary of the case from PlanSponsor.com:
According to the appellate court ruling, Guilbert went to work for a print brokerage firm owned by a family friend in January 1992. Guilbert claimed that in employment discussions with the owners the month before, the owners promised that they would start a pension fund for him with an initial $39,000 deposit and would add $10,000 to the account each year.
One member of the family owning the business wrote down the terms of the pension on a legal pad, according to Guilbert, and he received numerous oral assurances that the pension plan had been set up. Guilbert also submitted the company's tax returns indicating the company took certain tax deductions for "employee benefit programs."
Eight years later, according to the ruling, the print brokerage business failed
However, even taken together, Circuit Judge Peter Hall ruled that Guilbert's evidence did not prove an ERISA plan had been put into place from which he was owed benefits. Hall noted  that an ERISA plan is established only if, from the surrounding circumstances, a reasonable person can ascertain the intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.
I guess the take-home point here is that in these small businesses employees should demand to see the plan documents establishing the pension before taking for granted that one actually exists. PS
The issue in the case was whether a 16 year-old could ever find the sexual advances of an older male employee to be welcome. Under the Meritor test in sexual harassment law, one of the prongs that must be met involves showing that the sexually harassing conduct was subjectively unwelcome by the victim of the harassment. The argument here is that legally, because this situation involved a statutory rape under state law, the 16 year-old could not consent and therefore, as a matter of law, the advances were unwelcome.
The case is Jane Doe v. Oberweis Dairy, 04-3680 (7th Cir. July 28, 2006) and here is short summary of the case below via the Daily Chronicle of DeKalb:
The 16-year-old . . . filed a discrimination claim with the Equal Employment Opportunity Commission alleging that she was subjected to inappropriate sexual advances. A trial judge rejected the claim in part because he found that the girl "welcomed" Nayman's behavior.
The 7th U.S. Circuit Court of Appeals, however, said her views of Nayman's conduct were irrelevant because she is a minor. Her lawsuit against Oberweis could proceed, the appeals court said.
Here is the previous post on this case, with more details, from back in July 2006.
Monday, March 19, 2007
To follow up on a previous post of this past Thursday, the Supreme Court announced today that it is not reviewing two ERISA cases, which at first glance appeared to be appeal-worthy.
SCOTUSblog observes that as a result of the Court's Friday conference, it declined to review Xerox Corp. Retirement Plan v. Miller (06-962), the case which asked what method must pension benefit plans use in calculating the effect on retirement of earlier payments to a worker, from another benefit plan or from Social Security. Unfortunately, "[t]he denial of review leaves a Xerox pension plan subject to two different courts of appeals rulings on the issue of offsets of retirement benefits."
The court also determined not to hear the case of Louisiana Health & Indemnity v. Rapides Healthcare, (06-839), concerning whether ERISA prempts state laws that control the assignment of benefits by plan members.
Ross Runkel at his Employment Law Blog has a very informative post on a case, Sciolino v. Newport News, 05-2229 (4th Cir. Mar. 12, 2007), that discusses one of the least understood constitutional protections for public employees.
It is the stigma plus claim that protects public employees from having damaging employment information spread about them publicly without first having the procedural protection of a "name-clearing hearing." Such a claim is based on the notion that disparagement of employees without due process of law deprives them of a liberty interest by ruining their reputations and making it more difficult for them to find future employment.
Here is a little of what Ross has to say on this recent case discussing the stigma plus claim:
To state this type of liberty interest claim (often called a “stigma plus” claim), a plaintiff must allege that the charges against him (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.
The issue in this case involved the second (“dissemination”) element. Sciolino argued that the mere possibility of publication is enough to satisfy this element. Not surprisingly, the employer argued that actual publication was required.
The trial court opted for a “likelihood of publication” approach. There is a split among the circuits on this issue - resulting in several different approaches. The court concluded that an employee sufficiently states the second element when he alleges that prospective employers are likely to see the stigmatizing allegations. The court noted that if actual dissemination were required, “the information would have already been communicated to a potential employer, the employee’s job opportunities foreclosed, and his reputation damaged before any possibility for a name-clearing hearing.”
I agree with Ross that because of the circuit split on this important public employment procedural due process issue, Supreme Court review could be around the corner.
When I teach the concept of religious accommodation in the workplace as part of my employment discrimination law class, we always end up with the Hardison case and the fact that the employer does not need to undertake more than a de minimis cost in accommodating the religious needs of its employees.
Here's an example, however, where the employer seems to have voluntarily exceeded that threshold (via FoxNews.com):
Minneapolis-based Target Corp. has offered the [Muslim] cashiers the option of wearing gloves, shifting to other positions or transferring to other stores.
"We are confident that this is a reasonable solution for our guests and team members," Target spokeswoman Paula Thornton-Greear said in a statement e-mailed to The Associated Press on Saturday.
Some Muslim cashiers had declined to scan products such as bacon because doing so would conflict with their religious beliefs. They would ask other cashiers to ring up such purchases, or some customers scanned the items themselves.
A reasonable solution, indeed, but where does it end? I am reminded of the pharmacists a year or so back that refused to dispense contraception because of their religious beliefs. I think one way to handle these situations is to separate accommodation so that individuals can practice their faith outside of work (such as taking a Saturday or Sunday off for worship) and accommodation so that individuals can practice their faith, or observe its tenets, at work. In the latter instance, it would be considered unreasonable for employers to have to balance every religious objection its employees have to otherwise legitimate business practices (such as selling pork). (Of course, this analysis does not apply to the Target case above because after all that was a voluntary accommodation the company undertook likely beyond whatever the law might require). In our religiously pluralistic society, requiring more accommodations than that would interfere too greatly with employers' ability to run their workplaces. And as my good friend, Ross Runkel, aptly points out to me in an email exchange, there is also the issue of religiously accommodating one group of employees to such a degree that it interferes with the rights of other employees who don't subscribe to the same religious tenets or leads to other groups of employees wanting similar additional accommodations beyond what the law requires. Indeed, these concerns were brought up in Hardison case itself.
A reasonable solution, indeed, but where does it end? I am reminded of the pharmacists a year or so back that refused to dispense contraception because of their religious beliefs.
I think one way to handle these situations is to separate accommodation so that individuals can practice their faith outside of work (such as taking a Saturday or Sunday off for worship) and accommodation so that individuals can practice their faith, or observe its tenets, at work. In the latter instance, it would be considered unreasonable for employers to have to balance every religious objection its employees have to otherwise legitimate business practices (such as selling pork). (Of course, this analysis does not apply to the Target case above because after all that was a voluntary accommodation the company undertook likely beyond whatever the law might require).
In our religiously pluralistic society, requiring more accommodations than that would interfere too greatly with employers' ability to run their workplaces. And as my good friend, Ross Runkel, aptly points out to me in an email exchange, there is also the issue of religiously accommodating one group of employees to such a degree that it interferes with the rights of other employees who don't subscribe to the same religious tenets or leads to other groups of employees wanting similar additional accommodations beyond what the law requires. Indeed, these concerns were brought up in Hardison case itself.PS
Your Blogging Activity May Be Protected by the NLRA!
A common misunderstanding about the National Labor Relations Act is that it protects only unionized employees and employees who are in the process of organizing a union. Not so -- it also protects non-union employees who engage in "concerted activity" for "mutual aid or protection." As Marc Cote points out in a recent Comment in the Washington Law Review, an employee who blogs about her employer and about her work experiences may be protected by the NLRA -- meaning the employer can't fire her or take other action against her because of her blogging activities. To get this legal protection, an employee-blogger should do two things. First, make sure the blogging reflects, or is intended to inspire, group activity. The NLRA does not protect one employee complaining by herself -- it only protects employees who complain together, or a single employee who complains on behalf of other employees. Second, the complaints should be limited to terms and conditions of employment -- wages, hours, working conditions, benefits, etc. -- and should not disparage the employer's product or divulge proprietary information or trade secrets.
On the other side of the coin, many employers have created policies regulating or forbidding employees from discussing any work-related matters on employee blogs. While it is certainly within an employer's prerogative to warn employees against blogging about proprietary information and trade secrets, overbroad anti-blogging policies almost certainly constitute unfair labor practices under the NLRA. Employers would be well-advised to review their blogging policies to make sure the policies comply with the NLRA.
The article is Marc Cote, Comment, Getting Dooced: Employee Blogs and Employer Blogging Policies Under the National Labor Relations Act, 82 Wash. L. Rev. 121 (2007) (Westlaw subscription required).
- Russell K. Robinson (left), Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 Calif. L. Rev. 1 (2007).
- Michael Ashley Stein (right), Disability Human Rights, 95 Calif. L. Rev. 75 (2007).
Comments & Notes
- Marc Cote, Getting Dooced: Employee Blogs and Employer Blogging Policies Under the National Labor Relations Act, 82 Wash. L. Rev. 121 (2007).
Sunday, March 18, 2007
Thanks to Benefits Alert from the Alexander Hamilton Institute for providing this handy summary of recent Pension Protection Act of 2006 (PPA) guidances, one issued by the Department of Labor's Employee Benefit Security Administration (EBSA), and two issued by the Internal Revenue Service (IRS).
The EBSA and IRS Guidances are arranged into the following four significant categories: (1) diversification requirements for 401(k) plans holding publicly traded employer stock; (2) new vesting requirements for defined benefit plans and defined contribution plans; (3) notice provisions to alert plan participants and beneficiaries of their distribution options; and (4) investment advice provisions which provide safe harbors to allow outside investment advisors to counsel plan participants about individual investment decisions without running afoul of the prohibited transactions rule or turning the employer into a fiduciary for selecting the outside advisor.
- Diane Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (100).
- Oliver Hart & John Moore, Contracts as Reference Points (98).
- Christopher J. Kippley & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (86).
- Cass R. Sunstein, Cost-Benefit Analysis Without Analyzing Costs of Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms (75).
- Christine Jolls (photo above), Employment Law (66).