Saturday, July 14, 2007

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Sexual Harassment at UMKC: Dropping the Ball

Umkc_logo From the Chronicle of Higher Education (subscription required) comes word of a botched sexual harassment investigation at the University of Missouri-Kansas City, which has led the school to settle sexual harassment charges for over one million dollars.

Some details about this train wreck:

The University of Missouri at Kansas City has agreed to pay a total of $1.1-million to two female employees to settle a lawsuit that accused the university of doing nothing to stop the two men who ran their laboratory from making sexual advances, cracking explicit jokes, and groping female co-workers.

The two women -- Megan Pinkston-Camp, a graduate student, and Linda S. Garavalia, an associate professor of psychology -- sued the university [link to copy of the complaint] last year after they both left the lab in 2005, calling it a "sexually hostile work environment." They asserted that, while they worked at the lab, they were confused about how to file an official complaint with the university, and that when they did complain, the response was perfunctory.  

A good model for what not to do when faced with charges of sexual harassment as an employer.

PS

July 14, 2007 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Silbaugh on Urban Planning, Housing Design, and Work-Family Balance

Silbaughkatewhite_65w Katharine Silbaugh (Boston Univ.) has posted on SSRN her forthcoming piece in the Fordham Law Review: Women's Place: Urban Planning, Housing Design, and Work-Family Balance.

Here's the abstract:

In the past decade a substantial literature has emerged analyzing the role of work-family conflict in hampering women's economic, social, and civil equality. Many of the issues we routinely discuss as work family balance problems have distinct spatial dimensions. 'Place' is by no means the main factor in work-family balance difficulties, but amongst work-family policy-makers it is perhaps the least appreciated. This article examines the role of urban planning and housing design in frustrating the effective balance of work and family responsibilities. Nothing in the literature on work-family balance reform addresses this aspect of the problem. That literature focuses instead on employer mandates and family law reforms. This article fills the gap by evaluating the effect of 'place' on work-family balance and the role law plays in creating our challenging geography. I argue that effective work-family balance requires attention to the spatial dimensions of the work-family conflict.

What an interesting premise and one that I, and I'm sure many blog readers, had never thought about when considering these work-family balance issues.  This piece is a welcome contribution to this important and developing area of workplace law.

PS

July 14, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 13, 2007

Rodriguez on Language Diversity in the Workplace

Rodriguez Apropos to the English-only amendment to the EEOC bill posted on the other day, Cristina Rodriguez (NYU) has posted on SSRN her piece in the Northwestern Law Review: Language Diversity in the Workplace.

Here's the abstract:

This Article assesses the increasingly common employer practice of prohibiting employees from speaking languages other than English in the workplace - a phenomenon that provides an important window into the debate over how to manage the cultural consequences of immigration. I argue that the effects of English-only rules with which we should be most concerned are social, not individual, in nature. Such rules interfere with profound associational interests held by workers, both in the workplace and in social life more generally. While the English-only workplace rule may seem to advance communication in the workplace, I argue that fostering cooperation and solidarity among employees actually requires permitting linguistic fragmentation in some contexts. Promoting genuine, long-term cooperation in public settings like the workplace depends on what I call cultural burden sharing, or the development of legal and social expectations according to which all participants in the public sphere, and not just the assimilating immigrant, absorb some of the cultural effects of immigration.

Employees who have sought to challenge English-only rules have relied, largely unsuccessfully, on Title VII, which does not provide workers with a viable mechanism for articulating the salient associative interests compromised by English-only rules. But even if that limitation could be fixed through amendment or doctrinal reorientation, the process of cultural burden shifting will be deeper and more effective if channeled through decentralized and semi-private decisionmaking structures. Though it may seem counterintuitive, debates over how to maintain social cohesion during a period of demographic transformation ultimately should be diffuse and local, not concentrated and national. Exploring the anti-social dynamics imposed by English-only workplace rules thus contributes to the development of a productive framework for coming to terms with how unprecedented immigration is reshaping our social and political spaces.

This piece provides a new framework for analyzing the issue of English-only rules in the workplace.  I am interested to learn more about the "decentralized and semi-private decisionmaking structures" that Cristina alludes to.  In the meantime, check out this very timely piece.

PS

July 13, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Nursing and Workplace Violence

Medicallogo Everybody knows that being a nurse in a hospital is one of the most demanding jobs out there. But a violent job? Yes, according to this story from CNN.com:

Nurses understand that they have a tough job, but getting attacked and abused is not what former Boston area emergency room nurse Ellen MacInnis says she signed up for.

"It was very frightening," said the 18-year veteran. An angry and frustrated patient had grabbed MacInnis' hand, dug her nails in and made a chilling threat. "If you have children, I'll find them and I'll kill them."

This was not the only time MacInnis was assaulted on the job. Last summer, an intoxicated, H.I.V.-infected female patient tried to hit her and wound up covering her in blood . . . .

Nurses are often on the receiving end of physical assaults, because they are typically the first and most frequent medical personnel by the bedside of ill and sometimes angry or frustrated patients.

Emergency rooms seem to be the hot spots for violent assaults, according to experts interviewed for this article, but general practice nurses are not immune.

Fifty percent of nurses surveyed by the Massachusetts Nurses Association (MNA) -- a union of registered nurses -- and the University of Massachusetts said they had been punched at least once in a two-year period. Some reported being strangled, sexually assaulted or stuck with contaminated needles.

What to do?  Here is where effective and stringently enforced workplace safety rules can make a difference (I'm sure Kent will be happy to hear I believe this).  Rules currently exist under OSHA, it is just unclear whether they are being followed in the breach.

PS

July 13, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

The Sex-Obsessed DA

Mcdade There has been a controversy brewing in Georgia over the sentencing of a seventeen year-old black male teenager to 10 years in prison for engaging in oral sex with a fifteen year-old white female teenager.

The DA in charge of the case for Douglas County is David McDade (pictured left).  McDade made headlines again yesterday when he release a videotape showing a sex party of these teens where the incident occurred. McDade claimed he had no choice but to release the tape under Sunshine laws, but the federal U.S. attorney said that distribution of the tape was no less than distribution of child pornography.

In any event, what is the employment law angle? Well, it seems that McDade is no stranger to controversies surrounding sexual conduct. In fact, back in 1999, his own conduct was at issue in Lewis et. al. v. McDade, 54 F.Supp.2d 1332 (1999). Billy Merck from the Above the Law Blog summarizes the allegations:

Defendant McDade would tell a woman employee to walk down the hall so that he could watch her walk from behind. ... On occasion, he made comments about Plaintiff Lewis' legs and that her dress was a “turn-on.” ... Defendant McDade also shot rubber bands at the breasts and buttocks of the female employees. ... Defendant McDade lifted the suit jacket of Plaintiff Gerstenberger and looked and pointed at her buttocks. ... On an occasion when a man was being prosecuted who had obtained a penile implant, Defendant McDade carried the implant around the office proclaiming he was larger than the implant.

Read the whole post. The allegations get better. As Billy says, "classy dude."

Hat Tip:  Nicholas Greene

PS

July 13, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Weirdest Workplace Disputes (U.K. ed.)

Tollogo_2 Times Online (of London) has compiled a list of 14 recent odd workplace disputes.  For a "taste", here's #14:

Tony Price, the managing director of WStore UK, an IT company based in Surrey, demanded that his 80 staff submit to a DNA test after a piece of chewing gum got stuck to a directors’ suit trousers.  When his global e-mail pointing out the firm's chewing gum ban leaked to the media, Price cheekily suggested he would force staff to take lie detector tests to flush out the culprit.

rb

July 13, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship

Nancy Hart







Articles

  • Nancy J. Altman (left), Social Security and the Low-Income Worker, 56 Am. U. L. Rev. 1139 (2007).
  • Melissa Hart (right), Disparate Impact Discrimination: The Limits of Litigation, the Possibilities for Internal Compliance, 33 J. College & Univ. L. 547 (2007).

Note

  • Anthony D. Pignotti, If You Grab the Honey, You Better Have the Money: An In-Depth Analysis of Individual Supervisor Liability for Workplace Sexual Harassment, 5 Ave Maria L. Rev. 207 (2007).

rb

July 13, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 12, 2007

Domestic Violence Leave in Florida

Floridacountymap On July 1st of this year, a new law went into effect in Florida that permits victims of domestic violence to take up to three days leave from work.

Workforce Management has the details:

The legislation permits employees to take the leave in any 12-month period in order to take action in response to becoming a domestic violence victim, such as obtaining an injunction for protection or obtaining medical care or mental health counseling.

The law applies to employers with 50 or more employees and to employees who have been at the job three or more months.

Before receiving the leave, the employee must first exhaust all annual or vacation, personal and sick leave unless the employer waives the requirement, the law says. The leave may be with or without pay, at the employer’s discretion.

Except in cases of imminent danger, the employee must provide the employer with “appropriate” advance notice and sufficient documentation of domestic violence, according to the law.

Seems like a worthwhile amendment to the federal FMLA as well, since it fits nicely into the overall FMLA framework

PS

July 12, 2007 in Labor Law | Permalink | Comments (3) | TrackBack (0)

Reish on Brokers as ERISA Fiduciaries

Reish The July 11th Reish, Luftman, Reicher & Cohen Bulletin has an interesting piece by Fred Reish on potential liability for brokers who give investment advice to ERISA  plans.

Here is some of what Fred has to say on the topic:

I am often asked whether there are any lawsuits against brokers as fiduciaries for retirement plans. The answer is, yes, there are lawsuits and NASD arbitrations claiming that brokers have become ERISA fiduciaries. They are, in the main, based on allegations that the brokers gave investment advice. The cases are usually filed by the plan sponsor or its fiduciaries (e.g., the responsible officers, the committee or the trustee) to recover investment losses. Some of those cases are won by the plans and others are won by the brokers.

The legal issue is whether the broker made investment recommendations that rose to the level of ERISA-defined “investment advice,” which is different than either the securities law definition or the conversational meaning of those words. Stated slightly differently, ERISA did not make every broker a fiduciary, nor did it turn every investment recommendation into fiduciary advice. Instead, ERISA and the DOL regulations crafted a specific and limited definition of fiduciary investment advice.

The article then goes on to examine the recent case of Ellis v. Rycenga Homes, Inc., No. 1:04-cv-694 (W.D. Mich. Mar. 15, 2007) (Westlaw subscription required) to explain the concept of ERISA-defined investment advice.

Fred concludes based on this case's legal analysis:

In other words, to be fiduciary advice, the broker’s recommendations must contemplate, among other things, investment policies and strategies, portfolio composition, diversification or similar overarching factors. That is, investment recommendations alone are not fiduciary advice.

PS

July 12, 2007 in Pension and Benefits | Permalink | Comments (1) | TrackBack (1)

Wednesday, July 11, 2007

Upcoming Symposium on the Low Wage Worker

Mnlawreview2b Laura Cooper (Minnesota) writes to spread the word about an upcoming symposium.  Here are the details:

The Minnesota Law Review has announced plans for an interdisciplinary symposium, sponsored by The Labor Law Group, The Low Wage Worker:  Legal Rights―Legal Realities, to be held Friday, November 2, 2007, at the University of Minnesota Law School in Minneapolis.  Topics to be addressed include domestic work, immigration, collective action by low-wage workers, community organizing, workers’ centers, the history of low wage workers, the international human rights implications of denying labor protections to undocumented workers, legislative efforts to regulate big-box retailers, social class definition, and the economic effects of minimum wage laws.  Confirmed speakers include Peggie Smith, Ellen Dannin, Catherine Fisk, Michael Wishnie, Scott Cummings, Deborah Malamud, Jennifer Gordon, Nelson Lichtenstein, Craig Becker, Paul Strauss, David Weissbrodt and William Wascher.  Further details of the symposium, including discounted hotel rates, will be distributed later.  In the meantime, contact Laura Cooper or Catherine Fisk for further information.

rb

July 11, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

NLRBU Response to NLRB's Test of Certification

Nlrb As we reported earlier, the NLRB's General Counsel has decided to appeal the FLRA's decision to allow a NLRBU bargaining unit that consists of both General Counsel- and Board-side employees.  The NLRBU Executive Committee has released a response, which states in part:

The GC has mischaracterized the nature of the dispute. Using inappropriate hyperbole, the GC stated in his June 25, 2007, memorandum to all employees “. . . the FLRA certification threatens the Section 3(d) independence of the General Counsel.” and “. . . it raises profound issues regarding the structure and operation of the Agency, and the independence of the General Counsel’s office.” . . .

As noted by the Authority, “There is nothing in 3(d) that prevents the GC and Board from performing labor relations functions together.”  Moreover, as noted by the Authority, when the Civil Service Reform Act of 1978 was enacted, Congress specifically addressed conflicts of interest in federal agencies, including the Board, that administer laws relating to labor-management relations.  The legislative history behind the Statute shows that the only limitation that Congress placed on the NLRB was that the employees could not be represented by a union which is subject to the National Labor Relations Act. . . .

The GC’s position in the June 25, 2007 memorandum also distorts the history between the Board and the NLRBU. The GC asserts that the Authority’s consolidation of the units “. . . disrupts over 40 years of productive collective bargaining at the NLRB and places the independence of the General Counsel at risk.”  As found by the Authority, the undisputed facts reveal a different picture.  The Agency does not dispute that there is a history of coordinated bargaining for over 25 years in which the “policy issues concerning working conditions are jointly agreed to by the GC and the Board ‘the vast majority of the time,’ . . . and that the bargaining has resulted in ‘virtually identical contracts’ for the two headquarters bargaining units.”  In addition, the uncontested facts show that the Agency “does not separate Board and GC employees in critical respects” involving personnel authority and labor relations.  Those of us who have been in the trenches dealing with the GC and the Board on day-to-day labor relations matters know that those two entities speak with one voice on virtually every topic that is addressed without any compromising of the GC’s prosecutorial prerogatives.

So what really is at stake here?  The only employees in dispute are 32 support staff employees out of a total of 1041 unit employees. This number represents about 3% of the unit.  Surely no one can look at the big picture as found by the Authority, and as largely admitted by the Agency, and conclude that the GC’s ability to independently prosecute violations of the Act are jeopardized by the inclusion of this small number of support staff employees into a single bargaining unit.  Yet the GC has chosen to engage in an unnecessary and pointless academic exercise in support of a concept that that has no practical effect.

I still don't understand why the General Counsel is putting up such a fight for such a small number of employees.  He seems to be inviting bad PR for little to no obvious benefit other than to tweak the union.

If you want to read the entire response, feel free to email me.

-JH

July 11, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

French Minister: Quit Thinking and Get to Work!

Frenchflag France has just elected a conservative President who has promised to make the French work week, well, more American-like.

This article from CNNMoney nicely sums up the movement afoot in France:

France's love affair with ideas has gone too far and it is time for the country to quit thinking and get to work, Economy Minister Christine Lagarde said Tuesday as she plugged a tax plan aimed at boosting the economy.

Prime Minister Francois Fillon's government has proposed a "shock" program in the land of the 35-hour work week to encourage the French to work longer hours after several years of lagging their European peers in economic growth.

Citing French writers Alexis de Tocqueville and Mirabeau, Lagarde said France spends too much time in contemplation . . .

Employers say French labor and tax laws make it hard to create jobs, and discourage people from working harder. Lagarde said U.S., Japanese and Spanish employees spend 15 percent more time at work than their French counterparts.

The proposed measures, which include scrapping taxes on overtime and most inheritances, making certain mortgage repayments tax deductible and capping income tax at 50 percent, should be passed by parliament this summer.

Now there is an idea that might work in the U.S.: scrap taxes on overtime work! (Tongue is firmly in cheek).  And BTW, why don't our politician quote de Tocqueville more often?

PS

July 11, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Grossman and Brake on Reviving Title VII's Protection Against Pay Discrimination

Grossman Braked Joanna Grossman (Hofstra) and Deborah Brake (Pitt) have posted on FindLaw's Writ their commentary: Reviving Title VII's Protection Against Pay Discrimination In the Wake of the Supreme Court's Harsh Decision: A Call for Congressional Action.

Here are some highlights:

The Supreme Court has made a mess of pay discrimination law. In a prior column, we criticized the Court's recent ruling in Ledbetter v. Goodyear. In this column, we will argue that Congress should legislatively overturn that ruling - and should also take the opportunity to amend Title VII, the centerpiece of federal protection against employment discrimination, in other ways as well . . . .

The Ledbetter Court dismissed as "policy arguments" the concerns raised by the dissent about the hardship for employees who do not learn about pay disparities until it is too late. The Court ignored the elephant in the room: What kind of information suffices to place an employee on notice that she has a potential pay claim, so as to start the 180-day clock ticking? The majority simply states that the clock starts to run when the "discriminatory pay decision was made and communicated." . . . .

Specifically, Congress should restore the paycheck accrual rule--permitting employees to challenge pay discrimination that extends into the filing period, regardless of when it first began--that lower courts had applied before Ledbetter. The point is simple and just: As long as an employees' paycheck is still tainted by discrimination, she should not be time-barred from challenging it

The authors also suggest lengthening the Title VII statute of limitations to two years and "lift[ing] the statutory cap on damages in Title VII, so as to permit plaintiffs full recovery for intentional employment discrimination and impose sufficient incentives on employers to deter discrimination in the first place."

PS

July 11, 2007 in Commentary | Permalink | Comments (0) | TrackBack (0)

Fischl on The Other Side of the Picket Line

Mfischl Michael Fischl (Connecticut) has posted on SSRN his forthcoming piece in the NYU Review of Law and Social Change: The Other Side of the Picket Line: Contract, Democracy, and Power in a Law School Classroom.

Here's the abstract:

This essay -- from a forthcoming symposium on “teaching from the left” in the NYU Review of Law & Social Change -- offers an account of the successful union organizing campaign among custodial and landscaping workers at the University of Miami during the 2005–06 academic year, focusing in particular on the role played by faculty during the course of the campaign. It examines a fractious debate generated by faculty who held classes off campus in order to support the striking workers and the author's own decision to put the question of whether to honor the picket line to a vote of his students. It offers an analysis of the pattern of argument that emerged -- with opponents of off-campus classes invoking the rhetoric of contract and supporters invoking the rhetoric of democracy -- and of what that pattern may reveal about the nature of ideological conflict in contemporary campus culture.

I am much looking forward to reading Michael's piece, as I following the Univ. of Miami strike closely on this blog.  It examines also what I think is an under-appreciated dynamic in the law of labor relations.

PS

July 11, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 10, 2007

Garcetti Incentives At Work

Newsletter One of the criticisms of the Supreme Court's decision in Garcetti v. Ceballos (U.S. 2006), which held that public employee have no First Amendment protections when speaking pursuant to their official duties, is that it seems to give public employees the incentive to air their dirty laundry outside of work so they can get the protection of being a citizen.

Case in point: this letter from current Department of Justice (DOJ) senior attorney John Koppel to the Denver Post.  In the letter, Koppel lashes out against the politicization of the DOJ by the Bush Administration.  For instance, Koppel writes:

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.

The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.

In the course of its tenure since the Sept. 11 attacks, the Bush administration has turned the entire government (and the DOJ in particular) into a veritable Augean stable on issues such as civil rights, civil liberties, international law and basic human rights, as well as criminal prosecution and federal employment and contracting practices.

Recognizing that his words may not win friends in the Administration, Koppel also writes:

I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk.

I have to say that I have never seen speech on a matter of public concern which in so self-aware a manner recognizes the current limits of First Amendment protection for public employees. 

It will be interesting to see if the DOJ takes action against Koppel.  If so, Koppel, as a federal employee and as a result of Bush v. Lucas (U.S. 1983), will have to bring any First Amendment claim that he has to the Merit System Protection Board (MSPB), another politicized agency of the Bush Administration.

Oh, the irony!

PS

July 10, 2007 in Commentary | Permalink | Comments (3) | TrackBack (1)

10th Cir: Granting FMLA Leave Does Not Establish "Regarded As" ADA Claim

Scales CCH Workweek provides the following summary of the recent 10th Circuit case of Berry v T-Mobile USA, Inc, No. 05-1533 (10thCir. June 27, 2007):

T-Mobile USA, Inc's approval of FMLA leave for an employee with multiple sclerosis was insufficient to prove that the national provider of wireless communications regarded her as disabled under the Americans with Disabilities Act, concluded the Tenth Circuit. Given the different focus of the two statutes, the manager's suggestion that the employee apply for FMLA leave in response to the employee's request for "a rest at work due to extreme fatigue," and T-Mobile's approval of that leave, did not demonstrate an issue of fact as to whether she was "regarded as" disabled under the ADA.

I think this decision is right on the mark.  The standard under the FMLA is whether an individual has a "serious health condition," which is defined as requiring either inpatient care, involves a chronic serious health condition,  or requires more than a three day absence and two doctor visits or one doctor visit with a medicine being prescribed.  The ADA, on the other hand, requires an individual to have a mental or physical impairment that substantially limits the person in one or more major life activities. 

Clearly, then, one can have a serious health condition under the FMLA without being deemed disabled for purposes of the ADA. That being said, there is some overlap between the two statues, and the granting of FMLA leave may prove probative is appropriate circumstances to determine whether the employer regarded the employees has having a substantially-limiting impairment.

PS

July 10, 2007 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)