Saturday, August 4, 2007
Margaret Ellen Johnson (Baltimore) has just posted on SSRN her article (forthcoming Temple L. Rev.) Avoiding Harm Otherwise: Reframing Women Employees' Responses to the Harms of Sexual Harassment. Here's the abstract:
This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law's interest in employee's harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee's actions in response to sexual harassment from one that almost exclusively focuses on whether the employee failed to report the sexual harassment. To assist in the reconceptualization, this article explores women employees' responses to sexual harassment: the ways in which they are harmed by sexual harassment, beyond the act of sexual harassment itself, and the ways in which they avoid that harm, beyond simply reporting the sexual harassment. There are at least two benefits from this reframing. First, a more inclusive depiction of women employees' injuries from and responses to sexual harassment would far better inform sexual harassment liability determinations. As a result, the determinations can fulfill the legislative intent of Title VII of the Civil Rights Act of 1964 to encourage and reinforce employees' efforts to "avoid harm." Second, through this process, there is an opportunity to reveal the existing reality that highlights women's partial agency but often is obscured with the dominant picture of a sexual harassment victim as "suffering in silence."
As mentioned in a post last week, the Ninth Annual Peggy Browning Fund Workers' Rights Conference for students will be held October 19 & 20, 2007 at the National Labor College in Silver Spring, Maryland. We now have more information about the Conference. The registration deadline is August 30 if PBF pays for airfare; October 5 for all others. The keynote speaker will be Larry Cohen, President of the Communications Workers of America, AFL-CIO (photo at left). You can access the conference brochure and FAQs at the PBF website.
- Rene B. Adams & Daniel Ferreira, One Share, One Vote: The Empirical Evidence (502).
- Jason S. Scott, Longevity Annuity: An Annuity for Everyone? (414).
- Matthew D. Hutcheson, Retirement Plan Disclosure: Ethical Principles and Legal Obligations (178).
- Jeffrey N. Gordon (photo above), The 'Prudent Retiree Rule': What to Do When Retirement Security Is Impossible? (80).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (76).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (76).
- Lorand Bartels (photo above), Social Issues in Regional Trade Agreements: Labour, Environment and Human Rights (32).
- Harrie A.A. Verbon, Migrating Football Players, Transfer Fees and Migration Controls (24).
Friday, August 3, 2007
The Third Circuit has ordered arbitration, pursuant to an employment arbitration agreement, of a personal injury claim brought by an employee against a third-party contractor, despite the fact that neither the employer nor the contractor had agreed to a reciprocal arbitration agreement.
Leland Edwards worked for Wyatt, V.I. at a refinery (pictured at left) owned by Hovensa, LLC. Edwards was injured as a result of what he claimed was Hovensa's negligence. Edwards sued Hovensa. Hovensa moved to compel arbitration pursuant to an arbitration agreement Edwards had signed with Wyatt agreeing to arbitrate any personal injury claims that might arise against Hovensa. Edwards argued that the agreement was substantively unconscionable because applied to personal injuries and because it did not require Wyatt or Hovensa to arbitrate any claims claims they might have had against Edwards. The Third Circuit, however, disagreed, holding that those did not suffice to make the arbitration agreement substantively unconscionable.
The case is Edwards v. Hovensa LLC, ___ F.3d ___ (3d Cir. Aug. 2, 2007).
Derek Blackadder writes at Canada's Straightgoods.ca (hat tip Work-related Blogs and News) that Facebook has become a medium through which many employees communicate about their workplace:
Facebook's public image as a space for discussing romance, connecting with old school chums and staying in touch with distant family members obscures the fact a hefty chunk of Facebook's regulars are people talking about work, in what the site calls 'networks'. Workers who share a common employer, occupation, union or issues like health and safety concerns, are interacting on Facebook, creating networks, sharing insights and technical tips, venting, co-coordinating actions, and just generally doing good and useful things. They're doing what we used to call 'self-organizing', online, and across huge distances in real-time. Were I a union organizer these days, I'd be fishing in Facebook, making sure the self-organized were aware of their options.
I think Facebook (and perhaps to a lesser extent, its blue collar equivalent, MySpace) will have another impact as well: by decreasing the transaction costs of employees communicating with each other, it decreases the information asymmetries between employers and employees. In other words, Facebook will make it much less likely that an employer can run over a group of employees without paying a price in the labor marketplace.
David Gregory writes to tell us of a conference at St. John's on The Future of Labor Through the Prism of Bankruptcy. The fantastic lineup of speakers includes Thomas Geoghegan ("Which Side Are You On?") and Daniel Keating (Washington U.). The conference will be held at St. John's on Friday, September 28, 2007; the proceedings will be published in the American Bankruptcy Institute Law Review. For more, contact David Gregory or Ray Warner.
Thursday, August 2, 2007
In recent years, cities and states across the country have enacted smoke-free workplace laws to protect employees from the harm caused by secondhand smoke. The fact that secondhand smoke exposure is a significant public health threat is beyond dispute. The World Health Organization, U.S. Environmental Protection Agency, and U.S. Surgeon General all concur that there is no safe level of exposure to secondhand smoke.
At the same time, casino gambling has been rapidly expanding across the United States. As casino gambling expands, casino employees – like employees in any other workplace – need protection from secondhand smoke. Many existing smoke-free workplace laws, however, do not protect casino employees. This is cruelly ironic, since the secondhand smoke exposure faced by casino employees is often more severe than exposure employees experience in other workplaces
This article examines the benefits of establishing smoke-free environments in casinos, various approaches for creating smoke-free casinos, and the potential legal liability for casinos that expose their employees and others to secondhand smoke. Section I reviews smoke-free workplace laws and some relevant policy concerns. Section II discusses the legal options available to casino employees exposed to secondhand smoke in the workplace, and Section III reviews the intersection between smoke-free laws and Native American sovereignty.
An article on the front page of today's WSJ Marketplace section describes the extra mile a new Walgreen distribution center has gone to accommodate, train, and employ disabled employees. Here's a description:
As part of the program, Walgreen converted its computer displays from lines of type to touch screens with a few icons. It persuaded vendors to include more information in bar codes on merchandise, so that employees wouldn't have to enter so much data themselves. It redesigned work stations so that people don't have to stretch as far, and it added help buttons to summon assistance. Instead of posting printed cards to remind workers about having their bags inspected, Walgreen shows a video of someone opening a bag.
The results appear impressive:
The distribution center opened in January at a cost of $175 million. It currently employs 264 people, more than 40% of whom have various disabilities, and it is 20% more efficient than the company's older facilities. On some days, disabled employees are its most productive workers.
"One thing we found is they can all do the job," says Randy Lewis, a senior vice president of distribution and logistics at Walgreen, which is based in Deerfield, Ill. "What surprised us is the environment that it's created. It's a building where everybody helps each other out."
For more, see Amy Merrick, Erasing 'Un' From 'Unemployable' (WSJ subscription required).
A federal judge in Manhattan has granted class action status to a $200 million gender discrimination lawsuit brought against a subsidiary of Novartis AG by female sales employees.
U.S. District Judge Gerard E. Lynch on Tuesday signed off on a 51-page opinion and order certifying a class comprised of women who work or have worked in a sales-related position with New Jersey-based Novartis Pharmaceutical Corp. since July 15, 2002....
To me, certification in these large class action employment discrimination suits almost always seems to translate into a favorable settlement for plaintiffs. We shall see in this one.
PlanSponsor.com this morning has this potentially relevant decision for a pending Supreme Court case:
The 3rd U.S. Circuit Court of Appeals has decided that the Employee Retirement Income Security Act (ERISA) gives a cashed-out former employee the right to sue the administrator of his former employer's 401(k) plan for allegedly mismanaging plan assets and thus reducing his share of benefits. The court noted that Howard Graden had a "colorable claim" for benefits because a successful outcome of the suit would restore to the plan assets allocable to Graden's account, and he would get a second distribution. Remanding the case back to a lower court for further proceedings, the 3rd Circuit said that, when determining participant standing under ERISA, the question is whether the former employee alleges that his benefit payment was deficient on the day it was paid, under the terms of the plan and the statute. By the way, AARP and the Department of Labor filed briefs in support of Graden's argument.
This is almost the exact issue in the LaRue ERISA case pending before the Supreme Court and why I think that case is also not moot.
Wednesday, August 1, 2007
The American Bar Association ADR in Labor & Employment Law Committee (a Committee of the Section on Labor & Employment Law) is soliciting applications for its 2007-08 scholar-in-residence program. The selected scholar will attend the Committee's midwinter meeting, which will be held at the Fairmont Mayakoba in Playa Del Carmen, Mexico from February 10-13, 2008 (photo above), and will lead a committee program on a topic of interest as well as participate generally in the sessions. The scholar-in-residence will receive complimentary registration for the meeting and reimbursement for his/her hotel and transportation expenses up to a total of $2,000.00. Merrick Rossein of CUNY School of Law was last year's scholar-in-residence.
If you are interested in applying, contact Shannon Harrity.
Jessika Folkerts (Secretary General, Social Capital Foundation) writes to tell us about the upcoming Social Capital Foundation Conference on Social Capital and Diversity to take place in
Here are some details of the conference:
Multi-ethnicity is subject to a heavily contested debate. Its importance for society is huge: first, because it developed considerably in the Western countries in only a few decades; second, because its emergence involves - beyond an increased ability for cross-cultural communication - the transformation of crucial ancestral dimensions, such as culture, biology, family relationships, and relation to ancestors, as well as concepts of sexuality and death, and belonging to a nation or community.
These transformations may have considerable impact on social behavior in a wide range of contexts, including economic life and political democracy. All these transformations are far from being an "easy process", contrary to what political leadership may suggest.
This conference will bring together social scientists, economists, policymakers, social workers and the widest spectrum of the involved players to explore the issues arising in an increasingly multiethnic society. The objective is to make progress on the understanding of these issues, by shedding light on some current developments and drafting innovative, practical responses.
To register, please go here.
On June 26, the Senate voted 51-48 to defeat a "Motion to Invoke Cloture on the Motion to Proceed to Consider the Employee Free Choice Act.” In the wake of this defeat (for now) of EFCA, Kilpatrick Stockton LLP, Kreitzman Mortensen & Borden, and the National Association of Manufacturers will co-host a 90-minute webinar to discuss labor issues on the horizon.
The webinar is scheduled for tomorrow, August 2nd, from 11:00 AM - 12:30 PM. You can register here.
Tuesday, July 31, 2007
The BBC reports that a Domino's Pizza franchisee in Derby, England is being accused of holding eight migrant Hungarian workers in conditions of "modern-day slavery." T&G Unite -- a large British trade union -- alleged that the the franchisee took so many deductions from the workers' paychecks that the workers were owing the franchisee money, and that the franchisee evicted the workers from their apartment when they were fired. Steven Hemsley, the franchisor's CEO, promised an investigation. For more, see the BBC story Domino's workers in 'slavery' row; hat tip to pjhlaw.
Northwest Airlines, which of course used bankruptcy last year to cut wages and benefits and increase working hours of its pilots and other employees, has been plagued by month-end pilot "absenteeism," causing lots of canceled flights. The airline says pilots just aren't showing up. The union says Northwest is reaping what it sowed -- there just aren't enough pilots now to cover the flights. For more, see yesterday's Wall Street Journal article (subscription required) or today's report on NPR's Morning Edition.
Melissa Hart (Colorado) has posted on SSRN her piece in the Connecticut Law Review: The Possibility of Avoiding Discrimination: Considering Compliance and Liability.
Here's the abstract:
The gender discrimination class action Dukes v. Wal-Mart, whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to distinguish employers who are part of the problem from those who are not? This Article argues that, given the real possibility of judicial and public resistance to these suits, there is a serious need for some articulation of what employer practices would be sufficient to demonstrate legal compliance sufficient to forestall litigation like Dukes. Past litigation, the evaluations of human resources experts, and Supreme Court interpretations of the requirements of federal antidiscrimination law all provide some guidance as to employer policies that could satisfy these compliance efforts. But a growing body of empirical research suggests that workplace programs designed for compliance do not necessarily improve circumstances for women and minorities. Any discussion of compliance must grapple with this problem. This Article argues that employers, and those offering them guidance, must develop strategies for compliance that will in fact remove barriers to equality, but that litigation like Dukes may not be appropriate to target employers who have made substantial compliance efforts, even if those efforts have not eliminated inequalities.
Melissa is at the cutting-edge of employment discrimination class action scholarship. Check out this piece for another insightful piece in this area.
It was probably just a matter of when, not if, President Bush would threaten to veto the Lilly Ledbetter Fair Pay Act. The when came this afternoon as the Bush administration announced its intentions to say “no” to strengthening equal pay laws.
Back to your regularly scheduled program.
Update (from Adjunct Prof Blog): "On July 30, 2007, the House approved H. R. 2831 by a vote of 215-187 which amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes."
Monday, July 30, 2007
- Peter Reed Corbin (left) & John E. Duvall (second), Eleventh Circuit Survey: Employment Discrimination, 58 Mercer L. Rev. 1187 (2007).
- W. Christopher Arbery (third) & Valerie N. Njiiri (fourth), Eleventh Circuit Survey: Labor and Employment, 58 Mercer L. Rev. 1295 (2007).
- John Sanchez, 2005-06 Survey of Florida Public Employment Law, 31 Nova L. Rev. 127 (2006).
Comments & Notes
- Matthew Bernt, Should Public Employers Be Forced To Warn Their Employees of Their Immunity and Duty to Answer Questions before Demanding Answers and Taking Adverse Action?, 56 Catholic U. L. Rev. 1037 (2007).
- Keron A. Wright, Stuck on You: The Inability of an Ex-Spouse to Waive Rights Under an ERISA Pension Plan, 45 Washburn L.J. 687 (2006).
- Mike J. Wyatt, Buy Out or Get Out: Why Covenants Not to Compete in Surgeon Employment Contracts Are Truly Bad Medicine, 45 Washburn L.J. 687 (2006).