April 7, 2007
NYT Urges Cert Grant in Poisoned-Employee Case
Jack Cline, an Alabama industrial chemist, was exposed to benzene on the job and developed leukemia. When Mr. Cline tried to sue, he ran into a surreal glitch in Alabama law: any time he filed his lawsuit would have been either too early or too late. Mr. Cline’s widow, Martha Jane Cline, is asking the United States Supreme Court to review the case. The court should grant review, and rule that Alabama’s laws violate the Constitution.
Mr. Cline worked at a manufacturing plant in Bessemer, Ala., until about 1987, in a job that kept him in close proximity to large amounts of benzene. He was found to have acute myelogenous leukemia, which is closely associated with benzene exposure, in 1999. Within two years of the diagnosis, he sued the benzene manufacturers, but his suit was thrown out. The courts ruled that the state’s two-year statute of limitations ran from his last exposure to the benzene, which made his claim too late.
But if Mr. Cline had sued within two years of leaving the job, his case would have been dismissed as premature. Alabama law says there is no right to sue until the victim has a “manifest, present injury” — in other words, when his cancer developed. Alabama is the only state that counts the statute of limitations from when a person was last exposed, rather than when the injury manifested itself.
The full editorial is at A Chance to Be Heard. Hat tip: Ed Brewer.
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Annamaria Lusardi & Olivia S. Mitchell, Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (160).
- Christine Jolls, Employment Law (94).
- Amy Monahan (photo above), Pay or Play Laws, Erisa Preemption, and Potential Lessons from Massachusetts (73).
- Piet J.W. Duffhues & Rezaul Kabir, Is the Pay-Performance Relationship Always Positive? (71).
- Shlomo Benartzi & Richard H. Thaler, Heuristics and Biases in Retirement Savings Behavior (68).
Top-5 International Employment & Labor Law SSRN Downloads
- Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey (105).
- Eric V. Edmonds (photo above), Child Labor (59).
- Katherine V.W. Stone, A New Labor Law for a New World of Work: The Case for a Comparative-Transnational Approach (56).
- Harry W. Arthurs, Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law (51).
- Kevin Kolben, Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes (36).
April 6, 2007
Big Brother at the Workplace: Wal-Mart Employee Spying Scandal Growing
Here are some excerpts from the most recent developments in the story from Reuters:
The Wal-Mart Stores Inc. worker fired last month for intercepting a reporter's phone calls says he was part of a larger, sophisticated surveillance operation that included snooping not only on employees, but also on critics, stockholders and the consulting firm McKinsey & Co., The Wall Street Journal reported.
As part of the surveillance, the retailer last year had a long-haired employee infiltrate an anti-Wal-Mart group to determine if it planned protests at the company's annual meeting, according to Bruce Gabbard, the fired security worker, the Journal said.
The company also deployed cutting-edge monitoring systems made by a supplier to the Defense Department that allowed it to capture and record the actions of anyone connected to its global computer network, the Journal said.
The company fired Gabbard, a 19-year employee, last month for unauthorized recording of calls to and from a New York Times reporter and for intercepting pager messages. Wal-Mart conducted an internal investigation of Gabbard and his group's activities, fired his supervisor and demoted a vice president over the group.
A company spokeswoman, Sarah Clark, characterized its security operations as normal.
Boy, I sure hope that these types of operations are not "normal" and that most employees still retain some basic privacy rights in the private sector workplace. However, it might take legal action against Wal-Mart to determine exactly how far large companies like Wal-Mart can go with these types of "security operations."
Hoffman on the Efficacy of the ADA Title I
Sharona Hoffman has just posted on SSRN her article Settling the Matter: Does Title I of the ADA Work? Her surprising (at least to me) conclusion is that it does. She reaches this conclusion by examining not just case outcomes, but a variety of other measurements. Here's the abstract:
Analysis of cases decided under Title I of the Americans with Disabilities Act (ADA), which addresses employment discrimination, reveals that defendants have consistently prevailed in well over 90% of cases since the ADA's inception. This empirical evidence has led many commentators to conclude that the ADA's Title I has failed to improve workplace conditions for individuals with disabilities.
This article attempts to assess the efficacy of Title I through a different lens. It focuses on several data sets that have previously received little attention. It examines Equal Employment Opportunity Commission merit resolutions, lawsuit settlement statistics, and reports concerning reasonable accommodation requests processed by private and public sector employers. These statistics reveal that employers are reasonably responsive to Title I claimants outside of the courthouse setting and that the ADA has in fact improved workplace conditions for employees with disabilities.
The more general point made by this article is that the efficacy and impact of statutory mandates cannot be judged based solely on reported court opinions. Rather, data concerning the behavior of those covered by the statutes and extra-judicial dispute resolution are essential to an assessment of whether a statute has achieved the societal changes that it was designed to effect. Consequently, the paper emphasizes the need for more comprehensive empirical studies concerning ADA claim resolutions and outlines a proposal for mandatory reporting of settlement outcomes and the processing of reasonable accommodation requests by employers.
Corrada's Innovative Labor Law Teaching Featured
In Roberto Corrada's labor law class, students have a seat at the negotiating table the day they walk through the door.
Corrada, a professor at the Sturm College of Law since 1990, has students in the labor law class form a union. The union then negotiates the terms and conditions of the class, including the grading curve, the types of exams and the way students participate in class.
"My labor law classroom is our workplace," Corrada says. "In a work environment, workers show up and try to please the boss so that they can get paid. Students are often even more deferential to the teacher because they are working to get paid, too. They want a good grade."
This inventive approach to teaching labor law has garnered Corrada his share of attention in legal and academic circles across the nation.
The article gives you the chance to "go inside Corrada's classroom" and see the master in action. I love the fact that the class's representation election was overseen by a real official from the NLRB, with voting booths and everything!
New Book by Estreicher on Global Issues in Labor Law
Congratulations to Sam Estreicher (NYU) for the forthcoming publication of his new coursebook, Global Issues in Labor Law. It is scheduled to be published in May, and will be available for use in Fall 2007 classes.
From the promotional post card on the book:
This book is designed to facilitate the introduction of international, transnational, and comparative law issues into a labor law course. Emphasis throughout is on primary materials (statutes, Kennedy-McCain "guest worker" bill, ILO conventions, OECD guidelines, company codes of conduct, WTO rulings, AFL-CIO complaints, EU directives, etc. ) that have been carefully edited to facilitate classroom discussion.
The book is very accessible for both professors and their law students. The book can be assigned or recommended as optional reading to supplement a domestic-only labor law course to advance the students' understanding of their own system and the kinds of issues they will face in an era of globalization. It can also serve as the text for a stand-alone course or seminar on global labor law. No additional statutory supplement is necessary.
The five chapters of the book are:
1. “Extraterritorial" Application of U.S. Labor Law
2. International Framework for Assessment of U.S. Labor Standard
3. Labor and Trade
4. U.S.-Based Litigation Alleging Labor Rights Violations Abroad
5. Comparative Labor Law
If you would like a detailed copy of the table of contents or other information, please email West Law School and refer to ISBN 978-0314-17163-4*.
Grocery Lockout in Southern California Imminent
Member of the United Food & Commercial Workers walked out of contract negotiations Wednesday with Ralph's (a Kroger subsidiary), Albertson's, and Von's (a division of Safeway). They did so because the grocers said they'd all lock out workers if the UFCW struck any one of them. Albertson's employees have voted for a strike, to commence April 9. For more, see this Cincinnati Business Courrier story.
Nova Southeastern to Offer Online MS in Employment Law
Nova Southeastern's Shepard Broad Law Center announced yesterday that it will begin offering a Master of Science in Employment Law for non-lawyers. The goal of the program is to teach business and human resource professionals the necessary skills to effectively identify, understand, and deal with the intricate set of legal issues that arise in the employer-employee relationship. The two-year Master of Science in Employment Law program is taught almost entirely over the Internet. Judith Karp, Professor at Shepard Broad, is the program’s director.
April 5, 2007
Mississippi Shipyard Strike Settled
The strike at the Northrop Grumman Shipyard involving some 7,000 workers in Pascagoula, Mississippi, has been settled after almost a month of the workers being out on strike. The Clarion-Ledger reports:
Striking workers at the Northrop Grumman shipyard in Pascagoula ended a monthlong walkout Wednesday by approving the company's new contract proposal that calls for a $2.78 raise an hour over the next three years.
That is $1.22 less than the amount workers originally sought, but 18 cents more than the company's previous proposal.
In the new contract, first-year workers at Mississippi's largest private employer will see their average pay rise from $18.32 an hour to $20. The 9.2 percent increase is one of the largest hourly raises in company history for first-year workers, a company statement said.
The proposal calls for an immediate $1.68 raise, and then a boost of 55 cents a year for the next two years.
"This initial increase was designed to quickly and directly address the economic impacts of Hurricane Katrina on our employees," a statement from the company said.
We had written previously that this might have been the first major labor dispute directly related to the destruction wrought by Hurricane Katrina. And although the workers did not obtain nearly all that they wanted, I guess they felt under the circumstances this was as much as they could hope to receive.
More Materials for The Global Workplace
Bill Corbett (LSU) writes to let us know that there are new materials available for The Global Workplace: International and Comparative Employment Law-Cases and Materials by Blanpain, Bisom-Rapp, Corbett, Josephs, and Zimmer (Cambridge University Press 2007).
If you are considering adopting this casebook, you may review the Teachers' Manual and PowerPoint slides at the Cambridge University Press website. Additionally, if you would like to have an electronic version or hard copy sent to you, please email Bill Corbett or call him at 225-578-8723.
Moberly on Sarbanes-Oxley Whistleblowing
Richard Moberly has posted on SSRN his article Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win. Here's the excerpt:
Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process. This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases misapplied, Sarbanes-Oxley's substantive protections to the significant disadvantage of employees. These data-based findings assist in identifying the provisions and procedures of the Act that do not work as Congress intended as well as suggest potential remedies for these statutory and administrative deficiencies.
Levinson Posts Empirical Study on Misremembering
Justin Levinson has just posted on SSRN an abstract of his forthcoming article Forgotten Racial Equality: Implicit Bias, Decision-Making, and Misremembering. Here's an excerpt from the abstract:
This Article argues that judges and jurors unknowingly propagate racism through their legal decisions because they misremember case facts in implicitly biased ways . . . . To test the theory, the author conducted an empirical study that examined how people remember legally relevant facts. In the study, participants read two short stories resembling legal cases - one about a fight and another about an employment termination. The race of the characters in the stories was varied so that some participants read about African Americans, some read about Hawaiians, and others read about Caucasians. Participants were later asked to recall facts of the stories. Results of this recall task indicated that people systematically misremembered legally relevant facts in racially biased ways. For example, participants who read about an African American or Hawaiian involved in a fight were significantly more likely to remember aggressive actions from the fight, compared to participants who read about a Caucasian. Participants even sometimes generated false memories about an African American, erroneously believing that he had engaged in aggressive behaviors when he had not. Other results indicated that implicit memory biases are not related to consciously racist attitudes or preferences - even less “racist” people manifested systematic implicit racial biases. The results strongly support the theory that implicit memory biases operate in the legal setting, and that they operate without the conscious knowledge of judges or jurors.
Folks teaching from the Friedman & Strickler discrimination casebook will recall the Fitzpatrick disparate impact case in which African-American sufferers of PFB sued the Atlanta Fire Department over its no-beard policy. Atlanta said the policy was necessary to make sure the respirators fit correctly. An article on the front page of yesterday's Wall Street Journal indicates that respirator manufacturers are having a difficult time to get the things to fit anyone properly. Turns out they've always been tested on "white men of Eurpoean descent," and -- no surprise -- there are alot of firefighters out there now who don't fit that description.
As an aside, the article mentions a recent NIOSH studyfinding that 86% of all American firefighters, 73% of American healthcare workers, and 91% of workers in law enforcement are overweight or obese. Whoa.
The Transformative Potential of Title IX
Hofstra Law School will host a panel discussion Sticky Cultural Norms: The Transformative Potential of Title IX on April 30. The discussion is sponsored by Hofstra Law School’s Institute for the Study of Gender, Law and Policy and is being held in honor of the 35th anniversary of Title IX, the law that bans sex discrimination in federally funded programs.
Presenters include Deborah Brake (left), University of Pittsburgh School of Law; Erin Buzuvis (second), Western New England School of Law; and Verna Williams (third), University of Cincinnati School of Law. A variety of topics will be discussed including: the feminist legacy of this historic law and whether Title IX is an example of successful law reform that has transformed women’s roles in society or whether it merely papered over sexist cultural norms that are resistant to change. The panel will be moderated by Joanna L. Grossman (right), Hofstra Law School Professor of Law and co-director of the Institute for the Study of Gender, Law and Policy.
April 4, 2007
Law Professor Candidate Controversy at George Mason
George Mason Law School took an unusual step last week when it decided to hold a special town meeting to discuss the prospect of hiring a certain entry level candidate to become a law professor at the school. As most who read this blog know, law professor hiring occurs through a multi-step process that does not usually include special town hall meetings. So what gives?
The big deal was that George Mason Law was considering whether to hire Kiwi Camara [pictured left] as a law professor. Camara had become the center of a controversy last year when it was revealed that he had posted online his written law notes which contained various racial epithets in them. According to Inside Higher Ed, Mr. Camara had "attach[ed] a note warning readers of potentially offensive language. His shorthand included using the word “nig” to refer to African Americans, as in: “Nigs buy land w/ no nig covenant; Q: Enforceable?”
Inside Higher Ed provides further detail:
Camara was no ordinary student. After graduating at age 19, the youngest in Harvard Law’s history, the Filipino-American went on to win several Olin fellowships, at Harvard, Stanford and the Northwestern University School of Law, where he is currently teaching. He had a symposium article published in the Yale Law Journal. At each step, the words he wrote as a teenage 1L have followed in his wake, sometimes bubbling over again into the public sphere — especially after the news of his article’s acceptance hit Yale’s campus last year.
Well, George Mason Law has now decided to shelve (thanks, Joe!) the Camara candidacy all together. Dean Polsby "specifically noted in his e-mail to students that Camara was 'no longer a candidate' for reasons 'separate from those that prompted me to call the meeting.'"
But, as an academic exercise, what if George Mason Law decided not to hire Camara because of his previous writings? George Mason is a public law school, so the question would then be whether not hiring Camara because of his posted law notes would have violated his First Amendment rights to speech or expression?
Under the Connick/Pickering/Ceballos analysis, a public employee may not be retaliated against by his or her employer when he or she speaks out on a matter of public concern, unless the employer can point to substantial and legitimate efficiency interests that outweigh the employee's First Amendment rights. Most courts that have considered the issue agree that the Pickering analysis not only applies to current employees, but also may apply to hiring decision involving applicants who have said controversial things in the past.
This situation, however, seems unlike the case of the appointment of Robert Delahunty as a visiting law professor at the University of Minnesota Law School last fall, whose appointment caused a controversy because of his part in writing memos to the White House concerning the detainment of al Qaeda and Taliban prisoners. Camara's law school notes do not seem to meet the public concern test of Connick. His offensive comments about blacks surely do not constitute speech or expression of social, political, or community importance, and are more properly labeled as private expression. It is thus unlikely that he could claim First Amendment protections.
With or without First Amendment protection, Camara, who has repeatedly apologized over the years for his bigoted law notes, is eventually going to have to convince some law school that he has grown into a more mature and sensitive individual if he is to become a law professor some day.
Guns in the Workplace
It might seem obvious to most that employers should have the ability to keep their employees from bringing guns to work. But according to Michael Fox at Jottings By An Employer's Lawyer, there are some, especially members of the gun lobby, who believe that such rules infringe on employees' rights. Michael writes:
I am not a hunter, nor a student of the 2nd amendment, but I do know a bit about workplaces, and let me tell you this is an important issue for employers and its crazy to think employers shouldn't have the right to ban handguns. The NYT agrees, Workers’ Safety and the Gun Lobby.
If safety is the issue, which of course it is, the NYT points to this:
There is no debate that doing so [allowing guns at the workplace] endangers workers. Workplaces that tolerate guns are five to seven times more likely to suffer homicides than job sites that ban firearms, according to a 2005 study in The American Journal of Public Health. The notion that self-defense mandates keeping guns in office drawers or out in parking-lot glove compartments is a dangerous fantasy.
Yet, the Texas House has already passed a bill out of committee that would prohibit employers from banning guns in parking lots unless two conditions are met:
(1) the parking lot, garage, or other area is completely surrounded by a gate and is not open to the public; and (2) ingress to and egress from the parking lot, garage, or other area are monitored by security personnel.
And if you think that legislation is troubling, how about this one:
Even worse, SB 534 has already passed the Senate, and like its counterpart HB 992 (also passed out of committee), provides a cause of action for anyone discharged for having a gun on an employer's parking lot that has complied with a convoluted scheme involving the employee providing his supervisor a written statement that he has a gun, along with copies of the gun license and allowing the employer to provide an alternative place for storage.
I'm all for appropriate off-duty conduct statutes that protect employees in their lawful off-duty activities, but making it easier for employees to get to their guns to solve workplace disputes is not off-duty and there is nothing appropriate about it. Like Michael, I hope enough people voice concern about these dangerous workplace bills in Texas before they become law and people start getting hurt.
April 3, 2007
Whistleblower Protection for Medical Personnel in Colorado
What with the lack of whistleblowing protection for public employees in light of the Supreme Court decision in Garcetti v. Ceballos last year, it is good to see that some states like Colorado are taking matters into their own hands with regard to protecting private employee whistleblowers in important employment job categories:
Calling it a good example of cooperation, Gov. Bill Ritter signed a measure [last] Thursday that would allow nurses and other hospitals to blow the whistle without getting fired if they believe medical safety is being compromised.
Ritter said hospitals and nurses were able to find common ground.
"The common ground here (is) providing the best possible health care and consumer information to the people of Colorado, while also protecting the interests of our health care workers and our hospitals," Ritter said.
In light of the gaping void that Ceballos has caused for public employee whistleblowing protection, it would be great to see more of these types of bills being passed also for public employees, who seek to hold the government responsible for waste, corruption, and fraud.
April 2, 2007
The Rights and Wrongs of Discrimination
43 San Diego Law Review (Fall 2006)
- Larry Alexander, Introduction, p. 733.
- Mark Kelman, Defining the Antidiscrimination Norm to Defend It, p. 735.
- Richard J. Arneson, What is Wrongful Discrimination?, p. 775.
- Andrew Koppelman, Justice for Large Earlobes! A Comment on Richard Arneson’s ‘What Is Wrongful Discrimination?’ p. 809.
- Kasper Lippert-Rasmussen, Private Discrimination: A Prioritarian, Desert-Accommodating Account, p. 817.
- Kimberly A. Yuracko, Sameness, Subordination, and Perfectionism: Toward a More Complete Theory of Employment Discrimination Law, p. 857.
- Orly Lobel, Reflections on Equality, Adjudication, and the Regulation of Sexuality at Work: A Response to Kim Yuracko, p. 899.
- Connie S. Rosati, Explanation, Vindication, and the Role of Normative Theory in Legal Scholarship, p. 927.
- Alan Wertheimer, Reflections on Discrimination, p. 945.
- Peter Vallentyne, Left Libertarianism and Private Discrimination, p. 981.
- H. E. Baber, Left Libertarianism: What’s in It for Me?, p. 995.
- Michael Blake, The Discriminating Shopper, p. 1017.
- Dana K. Nelkin, Discriminating Shoppers Beware, p. 1035.
- Matt Zwolinski, Why Not Regulate Private Discrimination?, p. 1043.
- Donald A. Dripps, Is the Privilege of Private Discrimination an Artifact of an Icon?, p. 1063.
New York Gives Absolute Privilege to Statements Made on NASD Termination Form
Here's a summary of the case, Rosenberg v. Metlife Inc., No. 23 (NY Mar. 29, 2007), by Ross Runkel at Employment Law Memo:
After his employer discharged him, Rosenberg brought a libel action in federal court. The alleged libel was based on statements the employer made on the National Association of Securities Dealers (NASD) Uniform Termination Notice (Form U-5). The federal trial court dismissed the claim on the basis that the statements were absolutely privileged under New York law. The 2nd Circuit then certified this state law question to the New York Court of Appeals.
The New York court held that the statements are absolutely privileged because filing Form U-5 is compulsory, Form U-5 plays an important role in NASD's "quasi-judicial process" of enforcing SEC laws and regulations, and the protection of the public interest requires forthright responses on the form.
Okay, so here's my point: I can understand granting a conditional privilege to the statements on the form based on the reasons given by the court, but an absolute privilege? That would mean that an employer could put forth malicious lies or deliberately damaging information on this form about a former employee without any legal consequence. And I don't buy the Court's explanation that because, "filing of a Form U-5 with the NASD is a preliminary step in a quasi-judicial process[,] . . . such a[n absolute] privilege best serves the public interest in encouraging full and truthful disclosure."
As far as the Restatement of Torts is concerned, absolute immunity from defamation suits is reserved to those who participate in official proceedings such as court cases, legislative assemblies, and the like. Statements on a termination form, whether that form is compelled or not, do not fit into the category of where courts have traditionally permitted individuals to be absolute immune for liability based on their written or oral statements.
Instead, a statement made as part of a "preliminary step in a quasi-judicial process" should only be shielded from defamation claims to the extent that the employer has not acted with reckless disregard to the statements' truth or falsity.