April 14, 2007
Taking Labor Law Out of the Classroom and Into the Coffee Shop?
Rick wrote a week or so ago about how Starbucks is in hot water (pun intended) with the NLRB (and here is another post documenting this on-going struggle). Ashby Jones of the Wall Street Journal Blog now has some interesting additional background on the force behind the union organization effort:
From the “Law Students Who Have Done Interesting Things” department came a Washington Post story yesterday on Daniel Gross, A Fordham third-year law student who, prior to law school four years ago, helped start a worker’s union at Starbucks. According to the story, Gross, whom the WaPo dubs “The Norma Rae of the Caramel Macchiato,” grew discontented with his work at a Starbucks store in New York, and decided to help mobilize the troops.
Gross and others announced in 2004 their intention to unionize through the Industrial Workers of the World, which allowed Gross and his comrades to negotiate directly with Starbucks, and didn’t require certification votes at each store. Today, the Starbucks Workers Union isn’t exactly the Teamsters. But according to the story, it claims a “critical mass” of members at nine stores in four states.
The organization says it wants better pay, guaranteed hours, an end to understaffing and a safer workplace. Gross says that Starbucks is actively — and at times illegally — preventing him and his organization from getting what he wants.
I have to say I love what they're calling this guy, "“The Norma Rae of the Caramel Macchiato.” Will Starbuck workers turn off their barista machines and grinders in support?
April 13, 2007
Final HIPAA Regulations Address Wellness Programs
The April 12, 2007 Benefits Alert from the Alexander Hamilton Institute has important information about how the final HIPAA regulations will impact the ability of employer's to charge less for health insurance for those employees who voluntarily participate in wellness programs.
Since the interim regs were released in 2001, wellness programs have grown in popularity. These programs seek to reward employees who adopt healthy lifestyles, which means lower health premiums for employers and employees. Rewards often take the form of monetary incentives — a reduction in premiums or co-payments, discounts, cash, etc. The regs specify that monetary incentives are allowable, but place restrictions on how much may be offered and how wellness programs must be structured.
More details about how these wellness provisions and other
nondiscrimination provisions operate can be found both in the Benefits Alert and in the final HIPAA
8th Cir: No Need to Plead Exhaustion of Administration Remedies in Title VII Case
It is axiomatic that to bring a claim under Title VII to federal or state court it is necessary to first exhaust one's administrative remedies with the EEOC. But what if one does exhaust their administrative remedies, but fails to plead exhaustion in their complaint or attach the EEOC Charge or other documents to the complaint? 12(b)(6)?
No, says the 8th Circuit in Miles v. Bellfontaine Habilitation, 06-2318 (8th Cir. Apr. 12, 2007). Although an employee is required to exhaust administrative remedies to bring a Title VII claim, the failure to exhaust is an affirmative defense that the defendant employer must prove. Also, the court found no authority for the proposition that a plaintiff must attach their EEOC charge or other documentation to show that exhaustion has taken place.
From my days of practice on the management side, I do recall that a number of plaintiffs did attach various documents from the EEOC process, but I do not think all of them did. Of course, there were a number of complaints where no exhaustion had taken place on closer examination and those were easy 12(b)(6) dismissals.
Hat Tip: Ross Runkel
April 12, 2007
Parental Leave and Other Embarrassments
Saul Levmore, Dean at Chicago, will lecture next Tuesday at Case Western on why the United States has one of the least generous parental leave policies in the world. Here's a preview:
"It is not simply that we choose to have less of a welfare state," says Levmore, who has served as law dean at the University of Chicago since 2001. "Many developing nations offer little in the way of safety nets, but much more than our laws do for the typical employee occupied with childbirth. The right to parental leave is new to American workers; it covers one-half of the private sector workforce and is relatively short and unpaid. By contrast, other nations offer universal, paid leaves of 10 months or more."
Levmore will focus on parental leave policies and particularly the sustainability of current parental leave policies by private employers, such as high-end law firms, who often find a much higher dropout rate among the very employees their leave policies were meant to encourage. He also will discuss the adoption of universal extended paid parental leave as well as how to help parents cover more child care costs and improve the quality of child care.
Chamallas on Discrimination and Outrage
Martha Chamallas (Ohio State) has posted on SSRN her forthcoming piece in the William & Mary Law Review entitled: Discrimination and Outrage: The Migration from Civil Rights to Tort Law.
Here's the abstract:
It is not always appreciated that proven discrimination on the basis of race or sex may not amount to a tort and that even persistent racial or sexual harassment may not be enough to qualify for tort recovery. This Article explores the question of whether discriminatory and harassing conduct in the workplace is or should be considered outrageous conduct, actionable under the tort of intentional infliction of emotional distress. In recent years, courts have taken radically different approaches to the issue, from holding that such claims are preempted to treating the infliction tort as a reinforcement of civil rights principles. The dominant approach views tort claims as mere "gap fillers" that should come into play only in rare cases that do not fit comfortably under other recognized theories of redress.
To place the current approaches in perspective and determine the proper location for harassment claims, this Article analyzes the respective domains of torts and civil rights, discussing the prototypical harms and animating philosophies behind the two regimes. It provides a history of the intentional infliction tort—with particular emphasis on how early courts and commentators treated issues of gender, race, and sexuality—and explains a new scholarly turn toward universalism and protection through common law. The Article identifies major innovations in the development of the hostile environment claim to ascertain which basic principles could be transported to tort law. This Article concludes with a critique of the "gap filler" approach and an argument for adapting the limited migration approach of the new Restatement of Torts to allow emerging norms from civil rights to influence the adjudication of tort claims.
The relationship between employment discrimination claims and the tort of intention infliction of emotional distress has been historically neglected. This is a welcome and needed contribution to this area of the law.
Monitoring Employees' Email
The Wall Street Journal reports that an increasing number of employers are minotoring employees' outbound email. Inbound email has been monitored routinely for spam and viruses. But as companies become increasingly concerned with data breaches, they have commensureately increased surveillance and control over outgoing email as well.
For more, see Andrew Blackman, More Firms are Monitoring Employees' Outgoing Mail.
The Role of Medical Evidence in Defining "Disability"
Deirdre Smith (Maine) has posted on SSRN her forthcoming article Who Says You're Disabled? The Role of Medical Evidence in the ADA Definition of "Disability." Here's an excerpt from the abstract:
This Article argues that courts improperly require plaintiffs to produce expert medical evidence to establish that they meet the statute's definition of an "individual with a disability. The stated rationales applied to the medical evidence requirement, such as the need for "corroborating" evidence, "objective" evidence, or evidence to assist juries in assessing disabilities that are not "obvious," do not withstand analysis under either the substantive law of the ADA or broader summary judgment principles. Such requirement in fact reflects an unstated rationale: a deep-seated skepticism of those "claiming disability" generally and ADA plaintiffs specifically. As a result, judges disregard the proper analysis to be applied to summary judgment motions and instead impose a hyper-technical, heightened evidentiary burden on plaintiffs in an effort to foreclose potential malingers' claims from reaching the trial stage. This skepticism, however, is itself another form of entrenched, invidious discrimination against people with disabilities.
Moreover, judges' reliance on medical evidence to screen out claims brought by people faking or exaggerating disability is misplaced. The determination of whether a person is truly disabled or merely exaggerating her condition to achieve some secondary gain through ADA litigation is one more properly left to jurors than to doctors. The continued hegemony of medicine in identifying disability, as demonstrated in the view that physicians can and should serve as gatekeepers of disability claims, wrongly pathologizes and demeans the category of "disability" and undermines the statute's effectiveness as a tool to advance civil rights.
April 11, 2007
BREAKING: Supreme Court Dismisses Title VII Cat's Paw Case; Other Cat's Paw Cases Waiting In Wings
Update: On his Supreme Court Times Blog, Ross offers some speculation and opinion into why BCI might have decided to dismiss the case.
This just in via Ross' Employment Law Blog (via SCOTUSblog):
One of the biggest employment law cases of the year[, BCI Coca-Cola Bottling v. EEOC (docket 06-341),] will be dismissed from the US Supreme Court's docket by agreement of the parties . . . .
The case was to be argued on April 18. That argument will be cancelled.
We had recently written about Ross' prediction about this case here.
SCOTUSblog also has this recent update which indicates that the Court's may still choose to review the cat's paw issue in another case:
The Supreme Court will consider this week a potential sequel to the [BCI] case . . . that is to be dismissed imminently. Thanks to Public Citizen for pointing out that Ray v. CSX Transportation (06-405) is to be considered at the Court's Conference on Friday. The Court had denied review in the case on Nov. 27, but a rehearing petition was filed, and the Court asked for and received a response to that from CSX. The Fourth Circuit Court opinion discusses the subordinate bias issue only briefly; its opinion can be found at this site, by entering docket number 05-1623; it was decided May 23, 2006.
SCOTUSblog also notes another potential vehicle for deciding this issue:
If the Court still remains interested in the legal question, as it very likely is, the same issue is pending in Sawicki v. Morgan State University (06-306); available for download here. The Court considered that case on Jan. 5 along with the BCI case. The Sawicki case involves a final judgment -- a summary ruling in favor of the employer. In that case, the judgment was based upon Fourth Circuit precedent in 2004 (Hill v. Lockheed Martin Logistics Management).
I will update readers on any new developments as they come to my attention.
Schnapper on Appellate Decisions Applying Burlington Northern
Eric Schnapper (Univ. of Washington) has sent us a very useful outline and analysis of all the employment retaliation cases that appellate courts have decided since the Supreme Court's decision in Burlington Northern v. White (our previous post on that decision can be found here).
Here's a taste of Burlington Northern v. White in the Lower Courts: An Interim Report:
Despite the decision in Burlington Northern, employers have continued to insist that section 704(a) permits them to utilize a wide range of retaliatory actions against employees who engage in protected activities. The lower courts have been surprisingly receptive to these contentions. In the nine months since the Supreme Court decision, about half of the lower court decisions reported in Westlaw have held that Title VII permitted the particular retaliatory actions allegedly engaged in by the defendant employer.
Somewhat surprising that lower courts seem to be unwilling to apply the unfiltered teachings of the Burlington Northern decision. Notice the "somewhat."
You can find Eric's full analysis here.
Estreicher and Gold on The Shift From Defined Benefit Plans to Defined Contribution Plans
Here's the abstract:
The U.S. has undergone a major shift in recent years from defined benefit pension plans to defined contribution plans. The shift has important consequences for the most Americans because defined contributed plans, in granting decision-making authority to participants, will often fail to provide adequate retirement income to individuals with median earning capacity. The authors propose a number of legal changes to reduce some of the regulatory handicaps that have attended defined benefit plans and improve the reliability of defined contribution plans as principal source of retirement income.
This piece contains some much-needed, thoughtful recommendations on how to improve the current state of employer-provided pension plans. The full paper is here.
The Persisting Gender Pay Gap
Joni Hersch (Vanderbilt) has released a study (Sex Discrimination in the Labor Market) finding that even when taking into consideration characteristics that might affect wages, such as choices over household and child-related responsibilities, market characteristics, working conditions, occupational segregation (fields dominated by one sex), experience, or job turnover rates, sex discrimination still remains a strong explanation for the gender pay gap. “If the unexplained pay disparity sometimes favored women and sometimes favored men, there would be no reason for concern,” said Hersch. “But systematically and without exception, finding that women earn less than men raises some questions.”
Separately, Vanderbilt economics professor Malcolm Getz has found that education does not level the playing field. Although women yield a higher economic value after earning an advanced degree, they still earned less than men. “The payoff of professional degrees for women is much greater than for men because the earnings they can expect in other careers are so much lower,” said Getz.
For more, see Research Examines Why Women Earn Less Than Men.
April 10, 2007
MSHA to Host International Mine Rescue Conference
The U.S. Department of Labor's Mine Safety and Health Administration (MSHA) today announced it will host the third-ever biennial International Mine Rescue Conference at the Gaylord Opryland Resort and Conference Center in Nashville, Tenn., from Aug. 29 through Sept. 1. This conference will be the first held in the United States.
The theme of the four-day event is "Effective Mine Emergency Operations." Participants will discuss emergency command center operations, responsibilities during such operations, the effects of stress and fatigue on emergency decision-making, and on-site management and mobilization of mine rescue teams. An underground mine tour is scheduled, as well.
Maryland First State to Pass Living Wage Law
Thanks to the AFL-CIO Blog for bringing this important development in the labor and employment law world to our attention:
Maryland today became the first state to require contractors to pay workers a living wage, the fruit of a months-long coalition campaign that included union members, religious leaders and civil rights advocates.
On its last day in session, the Maryland Senate voted, 31–16, to approve the measure, which was passed by the state House last week. Gov. Martin O’Malley (D), who campaigned for the legislation, has promised to sign the bill.
The new law will require service contractors doing business with the state to pay employees $11.30 an hour in urban areas and $8.50 an hour in rural areas. The state's minimum wage is $6.15 an hour.
Will this be the start of a domino effect for state living wage laws? And won't it be great to see in years to come if such laws like this really cause the economic devastation to businesses that critics believe? Nothing quite like hard evidence when it comes to these matters.
Runkel Predicts Victory for EEOC in Cat's Paw Case
We previously wrote about how the Supreme Court has granted cert. in an employment discrimination case discussing the Cat's Paw theory of liability. We wrote there that the question presented is:
Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision undisputedly harbored no discriminatory motive toward the affected employee?
Ross Runkel in his Supreme Court Times Blog has this prediction in the case, BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission [Details, briefs], which is scheduled for oral argument on April 18th:
My prediction: EEOC will win by a landslide.
BCI's approach is quite logical, and is followed by some circuit courts. The Supreme Court will reject this approach simply because it has no roots in the text of the statute - Title VII.
The Court has previously held that the common law of agency is the way to go, and that Title VII's text dictates this. Both the supervisor and the HR manager were BCI's agents. It is the racial motivation of employee-agents that determines the racial motivation of BCI.
The supervisor was acting within the scope of his employment (and exercised authority delegated to him by BCI) when he made reports to the HR manager, so his alleged bias is imputed to BCI.
Of course, EEOC has to prove that the supervisor's action was a cause of Peters' discharge. The HR manager's independent investigation arguably broke the chain of causation. However, that's a question of fact which the Supreme Court will not decide. There is enough of factual dispute for the EEOC to avoid losing on summary judgment, so the Court will rule for EEOC.
And FWIW, and I'm sure Ross will be jumping up and down about this, I completely agree with his analysis, though I'm not sure it will be 9-0. Maybe more like 7-2 (with Alito and Thomas disagreeing). Does that count as a landslide?
More on Upcoming Beck ERISA Supreme Court Oral Argument
The llibulletin at the Legal Information Institute (LII) at Cornell Law School recently provided this helpful blurb outlining the arguments in the upcoming ERISA fiduciary duties case of Beck v. Pace Int'l Union, 05-1448 (opinion below):
The Employee Retirement Income Security Act of 1974 (ERISA) requires private sector pension plan managers to discharge their management duties solely in the interest of plan participants and beneficiaries. When Crown Vantage, Inc. entered into bankruptcy proceedings, it terminated its existing pension plan by purchasing an annuity, rather than merging the plan into a group of plans administered by PACE International Union (PACE), which represented a number of Crown's employees.
On behalf of those employees, PACE then sued Crown for failure to discharge its ERISA duties by adequately investigating the proposed merger. The Court of Appeals for the Ninth Circuit upheld the lower court's decision that Crown's failure to adequately consider the merger was a violation of its fiduciary duty under ERISA. The Supreme Court's decision in this case will determine whether an employer's adoption, modification, or termination of a pension plan can be based on its own business needs or the best interests of its employees.
A more full summary and analysis by LII can be found here. Oral argument will be on April 24th.
NAA Conference "Beyond the Protocol"
Just a reminder that the National Academy of Arbitrators will be sponsoring later this week a conference in Chicago Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution. Dennis Nolan, Hoyt Wheeler, Marty Malin, Arnold Zack, Theodore St. Antoine, Hon. Rebecca Pallmeyer, Calvin Sharpe, Michael Green, Lewis Maltby, and Jean Sternlight are but some of the many luminaries who will be speaking. You can download the "extended play" version of my own modest contribution at Beyond the Protocol: Recent Trends in Employment Arbitration.
The conference is being hosted April 13-14 by the Institute for Law and the Workplace, Chicago-Kent College of Law.
April 9, 2007
Labor and Employment Law Faculty Moves (2006-2007)
This post summarizes the labor and employment law faculty moves (entry-level and lateral hiring, promotions and receiving of tenure, deanships, and retirements) that have come to our attention over the last school year (Fall 2006 - Spring 2007).
I assume this list is incomplete and would appreciate from hearing from those who have additional information to provide. Thanks to all who provided information!
Lateral Moves (including lateral visitorships)
Scott Moss from Marquette to Colorado
Matt Bodie from Hofstra to Saint Louis
Alex Long from Oklahoma City to Tennessee
Nicole Porter from Saint Louis to Toledo
Michael Fischl from Miami to Connecticut
Susan Stabile from St. John's to St. Thomas
Judy Fudge from Osgoode Hall (York University) to University of Victoria (Canada)
Angela Onwuachi-Willig from U.C. Davis to Iowa
Tanya Hernandez from Rutgers-Newark to George Washington
Christine Jolls from Harvard to Yale
Michael Z. Green to Visit at Flordia State (Spring 2008)
Suja Thomas to Visit at Vanderbilt (Spring 2008)
Noah Zatz to Visit at Chicago (2007-2008)
Mike Zimmer to Visit at Northwestern (2007-2008)
Michael Hayes to Visit at Albany (2007-2008)
Entry Level (including coming from Visitorship/Fellowship/or Non-Tenure Track)
Emily Gold Waldman to Pace
Helen Norton to Colorado (was clinical faculty at Maryland)
Meredith Render to Alabama (was visiting at Maryland)
Eric Fink to Elon (former LRW/Lecturer at Standford)
Holning Lau to Hofstra (from fellowship at UCLA)
Anne Lofaso to West Virginia (formerly visiting at American)
Joseph Seiner to South Carolina
Sandra Sperino to Visit at Cincinnati (2007-2008) (was visiting at Saint Louis)
Kevin Banks to Queen's University (Ontario)
Kerri Stone to Florida International University (from fellowship at Temple)
Doris (Wendy) Greene to Samford University, Cumberland School of Law
Nancy Modesitt to University of Baltimore (formerly instructor at American)
Gary Roberts to Dean at Indiana-Indianapolis (was Deputy Dean at Tulane)
Sharona Hoffman to Associate Dean at Case Western
Cynthia Nance to Dean at Arkansas-Fayetteville
Nancy Zisk to Associate Dean at Charleston
Paul Steven Miller to Director of Disability Studies Program (University of Washington) (also appointed Henry M. Jackson Professor of Law)
Robert Bailey to Director, Center for the Study of Dispute Resolution (Missouri-Columbia)
Sam Bagenstos to Associate Dean for Research and Faculty Development at Washington University
Seth Harris at New York Law School
Angela Onwuachi-Willig at Iowa
- Caroline Mala Corbin (photo above), Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham L. Rev. 1965 (2007).
- Frank P. Tiscione, College Athletics and Workers' Compensation: Why the Courts Get It Wrong in Denying Student-Athletes Workers' Compensation Benefits When They Get Injured, 14 Sports Lawyers J. 137 (2007).
April 8, 2007
The Further Diminishment of Federal Employees' Civil Liberties
Thanks to Dana Nguyen for bringing to my attention this disturbing post on new federal employment guidelines in the Commerce Department written by Jamison Culberson (Western New England) on the Dorf on Law Blog. Here are some excerpts:
[T]he Commerce Department announced a new rule regulating communications with the press by its own scientists on any subject of ‘official interest.
Most important, according to PEER (Public Employees for Environmental Responsibility), is that “fundamental research communication” must, “before the communication occurs,” be approved by the designated “head of the operating unit.” The directive states that approval may not be withheld “based on policy, budget, or management implications of the research,” but it doesn’t define those terms and it limits appeals to within the Department. Furthermore, staff must give the Department at least two weeks “advance notice” of any written, oral or audiovisual presentation of a “public communication” prepared on their own time if it “is a matter of official interest to the Department because it relates to Department programs, policies or operations.” and that, “staff must give the Department at least two weeks “advance notice” of any written, oral or audiovisual presentation of a “public communication” prepared on their own time if it “is a matter of official interest to the Department because it relates to Department programs, policies or operations.”
This is truly scary stuff from a civil liberties standpoint. And although Jamison indicates that there still might be First Amendment protection for federal employees even in light of the restrictions placed on public employee First Amendment claims in Garcetti v. Ceballos, it is important to note that, unlike state employees, federal employees cannot bring their claims directly into federal court. Instead, under Bush v. Lucas (U.S. 1983), they must depend on civil service administrative remedies. The problem with this state of affairs is that the same remedies are not available under this civil service scheme and it is less likely that administrative adjudicators will have the same independence as members of the federal judiciary when handling these very political cases.
In all, not a rosy picture at all if one cares about the protection of federal employees' civil liberties.
NLRB-NY Slams Starbuck's
The National Labor Relations Board's New York office has accused Starbuck's of commiting 30 unfair labor practices in the process of trying to ward off union activity at four of its Manhattan outlets, according to an article in today's New York Times. Union organizers are pushing Starbuck's for higher wages ($8.75 an hour doesn't go far in Manhattan) and more hours (organizers want Starbuck's to guarantee a minimum of 25 or 30 hours of work a week). The challenge: Starbuck's (and unorganized Whole Foods) are perceived as corporate do-gooders, making it difficult for union organizers to muster public pressure for the companies to permit unions to organize.
Hat tip: Davida Isaacs.