Friday, August 17, 2007
Jeff posted yesterday about recent efforts of various unions to convince the NLRB to order companies to bargain with minority unions. Richard Hankins writes to tell us that his [management-side] firm has created a website containing links to the rulemaking petition itself and to the law professors' letter in support.
Working Mother Magazine has compiled a list of what it says are the top fifty law firms for women. These firms "have taken the lead in implementing penalty-free flex schedules and mentoring, networking and leadership programs."
In light of the increasingly tragic events in Utah, it's worth mentioning some important work involving coal mine safety. West Virginia University College of Law (along with the West Virginia Law review) is holding Part II of its symposium, "Thinking Outside of the Box: A Post-Sago Look at Coal Mine Safety" on November 2, 2007 (click on the link for more information).
Part I of its symposium was held in March and was quite successful. One of the organizers, Anne Marie Lofaso (WVU), wrote an interesting article as part of the symposium, Approaching Coal Mine Safety From a Comparative Law and International Perspective, that is worth checking out.
Should law firms have mandatory-retirement policies for their lawyers? The American Bar Association is saying no. Here’s the story from the National Law Journal’s Leigh Jones.
According to a 2005 Altman Weil study, reports the NLJ, some 57 percent of law firms with more than 1000 lawyers have them policies mandating that their lawyers step down upon reaching a certain age, typically between 65 and 75 years old. In a vote on Aug. 13 by the ABA’s House of Delegates at its annual meeting in San Francisco, the organization took the official position of urging law firms to rethink their policies.
One argument put forth by proponents of the ABA’s measure: such policies run counter to the status quo in other industry workplaces, where such policies violate the law. Opponents of the resolution argued that the ABA shouldn’t be in the business of telling law firms how to run their operations.
Of course, all this talk of mandatory retirement policies may be moot if many partners become "employees" as a result of the Sidley Austin ruling,
Thursday, August 16, 2007
FedEx’s control over every exquisite detail of the drivers’ performance, including the color of their socks and the style of their hair, supports the trial court’s conclusion that the drivers are employees, not independent contractors. The drivers must wear uniforms and use specific scanners and forms, all obtained from FedEx and marked with FedEx’s logo. The larger items -- trucks and scanners -- are obtained from FedEx approved providers, usually financed through FedEx, and repaid through deductions from the drivers’ weekly checks. Many standard employee benefits are provided, and the drivers work full time, with regular schedules and regular routes. The terminal managers are the drivers’ immediate supervisors and can unilaterally reconfigure the drivers’ routes without regard to the drivers’ resulting loss of income. The customers are FedEx’s customers, not the drivers’ customers. FedEx has discretion to reject a driver’s helper, temporary replacement, or proposed assignee.
The case is Estrada v. FedEx Ground Package System, Inc., No. B189031, Cal. App. 2 Dist. 8/13/07. This is a case that's been heavily litigated for some time. It sets an important precedent for distinguishing between employees and independent contractors.
Hat tip: John Holmquist, Jr.
Steven Greenhouse at the New York Times is reporting on the efforts of various unions to convince the NLRB to order employers to bargain with minority unions. This effort has been spearheaded by Charlie Morris (SMU). As Greenhouse explains:
This would be a sharp departure from current practices, in which employers are required to bargain with a union only after it shows that a majority of employees at a workplace support it. . . .
The unions involved in the bid, including the United Steelworkers and the United Auto Workers, say the labor board should return to a largely forgotten practice, prevalent in the 1930s, in which companies often bargained with unions representing only a minority of workers who had joined them. “This is what the text of the National Labor Relations Act requires, and there are no decisions to the contrary,” said Charles J. Morris, an emeritus professor of labor law at Southern Methodist University and the foremost champion of this notion.
Union officials acknowledged that the labor board, currently dominated by appointees of President Bush, would probably not adopt a rule so favorable to unions. But union officials said they were petitioning now in the hope that there will be a Democratic president someday who will appoint a board that will look favorably upon their argument. . . .
The unions’ legal papers note that the steelworkers and auto workers were at first minority, members-only unions at several companies and then obtained good contracts that helped persuade 180,000 other workers to organize as part of majority-backed unions.
Twenty-five law professors wrote to the labor board yesterday in support of the unions’ interpretation of the statute, saying that minority, members-only unions can provide “a useful and often-needed steppingstone to majority-based” unions.
The National Labor Relations Act, passed in 1935, states that unions can be the exclusive bargaining agent for all employees at a workplace only after there is a showing of majority support. But the unions argued yesterday that even when a union does not represent a majority, employers still have a duty to bargain with a minority union, but not on an exclusivity basis representing all employees.
No doubt that the petition will not get a favorable review from the current Board, although with the delays that all too often accompany big cases who knows what the Board will look like when it finally gets to this. Either way, this is a very interesting argument and I'm looking forward to seeing how it develops.
Emory will host a two-day Conference on Ethics and Professionalism entitled "Lawyers and Disability." The program will be held September 7-8, 2007. Speakers include Wendy Hensel (Georgia State), E. Ann Puckett (Georgia), and Michael Perlin (N.Y.L.S.).
Not much, in the Fifth Circuit. Michael Fox's Jottings and Paul Mollica's Daily Developments cover this case from different angles. The basics are fairly straightforward. For some 35 years, the Fifth Circuit has permitted EEOC determinations to be introduced as evidence at trial. But in Guerra v. North East Independent School District, the court upheld a trial court's decision to exclude a determination. The court explained:
The EEOC letter was created under questionable conditions—the EEOC investigators initially determined that NEISD had not discriminated against Guerra but later, following complaints by Guerra to a member of Congress, reopened the file and reversed their decision without any new evidence. The district judge did not allow NEISD to subpoena the EEOC investigators to explain this matter.
The court also held that “the EEOC evidence spoke directly to the ultimate issue in the case. It would likely have prejudiced the jury since the EEOC made its own factual determination that age discrimination occurred.”
If discrimination determinations turn on political whims, then I can't blame the Fifth Circuit for concluding that the determinations aren't reliable. But if the determinations aren't reliable, there's not much point in having the EEOC make determinations at all. This is another example of how the EEOC charge-filing process has become little more than a procedural roadblock to employees pursuing statutory discrimination claims.
Wednesday, August 15, 2007
The Washington Post had an editorial yesterday suggesting as much. Here are some excerpts:
BEFORE LEAVING for its August recess, the House of Representatives approved legislation to blunt the impact of a Supreme Court ruling that severely constricted the opportunity for workers to seek redress in court for pay discrimination. The legislation is needed, but the House included provisions that could unnecessarily burden employers. These problems should be addressed in the Senate, where a companion bill has been filed . . . .
The House legislation allows workers to file grievances within 180 days of receiving a paycheck that reflects a discriminatory pay decision -- even if the initial decision itself was made years before. Every paycheck, in other words, becomes a possible trigger for filing a complaint. This isn't as terrible as some business squawking might lead you to believe: It was a standard that was in use in many parts of the country before the Supreme Court decision, without dire consequences, and businesses would still be protected from abusive claims by existing provisions that cap punitive damages at $300,000 and prevent workers from collecting more than two years' worth of back pay.
Still, the House bill would all but eliminate a statute of limitations, which was not Congress's original intent, and the Senate should consider whether something other than a paycheck trigger may be fairer. One possibility: adopting a "reasonable person" standard. That would allow a worker to file a claim beyond the 180 days now mandated by the court's decision, but not beyond the point where a court could conclude that a "reasonable person" could have or should have been aware of the discrimination.
I like the idea of the discovery rule here (and indeed, I thought it had basically been adopted in the Ricks decision way back when), but I think the equitable doctrine of laches, an equitable defense for employers who are prejudiced by undue delay, may be something that the courts could also use. After all, the laches defense was given Court approval in the Morgan decision dealing with harassment claims back in 2002.
In any event, I'm still not holding my breath that the House and Senate will be able to overcome either a Republican Senate filibuster or Presidential veto. The rallying cry?: "2009!"
The Northern District of Ohio has issued a decision dealing
with the issue of the "make whole" defense raised in a case for
reimbursement of medical expenses after settlement of a personal injury
In Findlay Industries, Inc. v. Bohanon, 07-1210 (N.D. Ohio Aug. 14, 2007), the district court found that the "make whole" defense is not available post-Sereboff where the plan provision is sufficiently clear. More specifically, the court stated:
In the present case, Findlay . . . seeks “specifically identifiable funds” – namely, a portion of Bohanan’s settlement with UPS – to reimburse the plan for monies it expended under the plan to cover Bohanan’s medical expenses. Findlay does not seek to recover from other monies or assets belonging to Bohanon. Furthermore, the “Right of Reimbursement” clause, in language similar to that of the agreement in Sereboff, lays claim to “any amounts paid in satisfaction of any judgment or court order, by way of settlement, or pursuant to any other agreement whereby any compensation is paid for the same injury or illness.” Findlay also specified its share of the settlement as reimbursement specifically for “payments by the Plan.” Therefore, Findlay appropriately seeks an equitable remedy for specific funds under ERISA.
On the "make whole" defense, the court wasn't buying it:
[D]efendant puts forward the federal common law defense that she was not made whole by the settlement, and thus any claim for reimbursement is precluded. Under the make-whole doctrine “an insurer cannot enforce its subrogation rights unless and until the insured has been made whole by any recovery.” Copeland Oaks v. Haupt, 209 F.3d 811, 813 (6th Cir. 2000). The Supreme Court in Sereboff, supra, while characterizing an “Acts of Third Parties” contract provision as an equitable lien, also held that equitable defenses in general are not applicable to enforcement of an equitable lien. 126 S.Ct. at 1877. In particular, Sereboff found the make-whole doctrine to be irrelevant as well as inapplicable to the ERISA claim before it. Id.
It therefore appears that Sereboff is already making a significant difference in these self-insured cases where plans seeks reimbursement from employee third-party recoveries.
Hat Tip: Mark Abramson
Thanks to the LERA-listserv for bringing to our attention the following call for scholarship applications for those interested in public sector labor relations.
The NPELRA Foundation, a subsidiary of the National Public Employer Labor Relations Association, has announced that it will award its eighth round of Anthony C. Russo Scholarships this fall. Human resource, labor and industrial relations, public administration or political science graduate students with an interest in labor and employee relations and the public sector are encouraged to apply.
If you are interested in applying, applications must be
postmarked no later than September 28, 2007. Application information and forms
can be found at http://npelra.org.
Martha McCluskey (Buffalo) writes the worklaw listserv to inform everyone about the forthcoming conference: "The High Road Runs Through the City: Advocating for Economic Justice at the Local Level." It is scheduled to take place
Sept. 27-28, 2007, in Buffalo, NY and will be hosted by the State University of New York at Buffalo Law School, the Baldy Center for Law and Social Policy, and Cornell University ILR.
Here's part of the description:
Local government provides important opportunities and challenges for efforts to address economic inequality and workers’ rights. Living wage ordinances are one example of the recent interest in local policy as a site of potential progressive reform. However, such local initiatives for economic justice frequently confront questions about the relationship between local democratic governance and economic policymaking. Many cities have failed to enforce their living wage ordinances; many local economic policies are made outside of democratic processes; local governments are often constrained by “subsidy wars” encouraging a race to the bottom; and local politics is often dominated by narrow interests. This conference brings together scholars in a variety of disciplines with activists and policymakers to explore the possibilities and challenges for developing progressive economic policies in local government.
For those interested in attending, visit http://www.ilr.cornell.edu/wied/highroadrunsthroughthecity/ or contact Martha McCluskey, Professor of Law and William J. Magavern Fellow, State University of New York at Buffalo, firstname.lastname@example.org.
As we posted earlier, the NLRB's General Counsel, Ronald Meisburg, recently appealed an FLRA decision to allow the NLRBU to represent a unit that included both Board-side and General Counsel-side employees. The NLRBU has responded by picketing outside NLRB headquarters. In it accompanying press release, the NLRBU states:
National Labor Relations Board Union members today carried informational picket signs and distributed leaflets demanding the resignation of National Labor Relations Board General Counsel Ronald Meisburg. The Union alleges that Meisburg, a presidential appointee whose term ends in 2010, has engaged in conduct that shows defiance of Federal Law and contempt for the rights of his employees. . . .
Union leaders expressed outrage at the decision [to challenge the FLRA's opinion] and demanded that Meisburg resign. “Meisburg is engaging in the same type of conduct that he is supposed to prohibit when it’s done by private sector employers,” said Eric Brooks, president of the Union. “It’s disgraceful that someone in his position would defy Federal Law, especially when the motive is to deny bargaining rights to his own employees. His conduct demonstrates that he can no longer be trusted to enforce employee rights in either the public or private sectors.”
Another picketer, who asked not to be identified by name, was blunter. “Every day, I go to work and attempt to enforce Federal Labor law,” he said. “Now my own boss is saying that he’s going to violate the law. I no longer have any respect for him as the head of the Agency. He should go.”
Union sources said this would not be the last demonstration demanding Meisburg’s resignation. They indicated that the Union has plans to picket at other public events Meisburg attends and will continue until he either resigns or agrees to obey the law.
As I noted in my earlier post, labor relations at the NLRB have long had problems and this latest action is part of a much bigger set of issues I don't imagine that the protests will have any direct effect on the Board's position or Meisburg's tenure, but don't look for this dispute to go away any time soon.
Tuesday, August 14, 2007
The New York Daily News recently reported on a half-million dollar minimum wage lawsuit brought by deliverymen against their employer, a Chinese-Peruvian restaurant called Flor de Mayo. The employees are being represented by the Urban Justice Center. The suit alleges that the deliverymen:
are paid just $1.25 an hour for lugging orders - and rarely made more than a few bucks in tips."For seven years, I have been treated like a slave," said Fernando Lopez, 30, of the Bronx. "We washed bathrooms, took out the trash and cleaned sidewalks. No one should have to work for so little."
Lopez and other menial workers at the family-owned restaurant on Amsterdam Ave. say they make perhaps $2 in tips per order - or a measly $40 extra a shift. That still leaves them way below the official state minimum wage of $7.15 - and even workers who get tips are supposed to make at least $4.60 an hour. . . .
The suit filed by lawyers with the Urban Justice Center, demands $500,000 in back wages and penalties from the restaurant. Earlier suits have hit Asian restaurants for stiffing waiters, but this is the first time the group has gone to bat for Latino restaurant workers.
This obviously is not an isolated problem in New York or other cities. As the federal minimum wage increases, the problem will only get worse, so we're likely to see even more--and bigger--of these suits.
Hat Tip: Mae Quinn
The Deloitte Global Employer Rewards Washington Bulletin for August 13th reports that:
The leaders of the Senate Health, Education, Labor and Pensions (HELP) Committee and of the Senate Finance Committee introduced S. 1974 and the House Committee on Ways & Means, along with the Committee on Education and Labor, introduced H.R. 3361, implementing a number of PPA technical corrections.
A textual description of the changes are available here.
The Corrections include:
For applicable defined benefit (hybrid) plans:
The new vesting rules for hybrid plans are effective on the basis of plan years and apply to participants with an hour of service after the applicable effective date for the plan.
The new interest crediting rules for hybrid plans in existence on June 29, 2005 apply to years beginning after December 31, 2007, unless the sponsor elects to apply the rules earlier.
The vesting and interest crediting rules that apply to collectively bargained plans do not apply to plan years beginning before the earlier of: (1) (a) the later of January 1, 2008 or (b) the termination of the collective bargaining agreement; or (2) January 1, 2010 . . . .
All plans must permit rollovers out of the plan for non-spousal beneficiaries.
Given that the original bill was enormous, it is not at all surprising that a number of corrections are necessary.
On the opposite side of the "opt-in" case discussed by the Supreme Court in Davenport v. Washington Ed. Assn., Nos. 05-1589 and 05-1657 (U.S. June 14, 2007) is how unions may regulate union dues opt-out schemes. Must the objecting non-union member continue to object on a yearly basis or is once enough?
[a] union may not require agency fee payers to file annual objections to expenditures unrelated to the collective bargaining process . . . . The union's procedures for dealing with agency fee payers failed to minimize the risk that objectors' First Amendment rights would be burdened.
Is filling out a form to say that you don't want to support the union in non-collective bargaining activities really that burdensome? If the union is making it difficult on purpose than that may be one thing, but if not, what's the big deal?
Jim Harrington (Texas, Adjunct) has posted on SSRN his article: A Re-Birth for Civil Rights Litigation: Using the Americans with Disabilities Act to Overcome Section 1983 Hurdles and Hold Government and Police Accountable.
Here's the abstract:
This article discusses how the Americans with Disabilities Act (ADA) can fill a void left by 42 U.S.C 1983 decisional law, and provide relief where 1983 may not do so. It offers examples, not a comprehensive list, but suggestions of possibilities to the practitioner and court. The ADA, enacted in 1990, offers an alternative vehicle for vindicating the rights of people with physical and mental disabilities beyond that accorded by the traditional civil rights statute, 1983.
The article also shows how, in some situations, 1983 and the ADA go hand-in-hand to make a stronger lawsuit, and how at times the ADA can inform 1983 standards. The examples here point toward the direction in which careful and creative civil rights litigation is moving, and where it may move further in the future. The article addresses jail and prison issues (HIV, suicide, interpreters and the Prison Litigation Reform Act), police activities (use of force and persons with mental disabilities, and suicide calls), the administration of justice, parole and probation, and attorneys' fees, costs, and litigation expenses.
An interesting article seeking to capture the synergy of two civil rights statutes.
Monday, August 13, 2007
The Second Circuit has just held squarely that union-negotiated arbitration agreements covering federal statutory claims are unenforceable. The case is Pyett v. Pennsylvania Building Co., No. 06-3047 (2d Cir. Aug. 1, 2007). Hat tip: Dennis Nolan.
A group of employees were transferred and denied overtime. The employees grieved, claiming that the transfers and overtime both violated the collective bargaining agreement and were the product of age discrimination. The union pursued the employees' contract claims through arbitration, but declined to pursue the age claims. The employees sued on the age claims. The employer moved to dismiss or compel arbitration based on an arbitration clause specifying that "all claims made pursuant to ... the Age Discrimination in Employment Act [and other enumerated federal and state antidiscrimination statutes] ... shall be subject to the grievance and arbitration procedure [of the cba] ... as the sole and exclusive remedy for violations."
The district court denied the motion, and the Second Circuit affirmed.
The legal issue in this case stems from the Supreme Court's repeated failure to explain the extent to which Alexander v. Gardner-Denver is still good law. In Alexander, the Court held that an employee's arbitration of a race claim arising under the nondiscrimination clause of a collective bargaining agreement did not foreclose subsequent litigation of a statutory claim based on the same facts. The Court denigrated arbitration as a method of resolving statutory claims, but also pointed out that a union's status as representative of a majority of members in the bargaining unit could conflict with its representation of individual employees.
In Gilmer v. Interstate/Johnson Lane Corp., the Court required an employee to arbitrate his age discrimination case. Though the Court rejected Alexander's denigration of arbitration, the Gilmer Court expressly distinguished, rather than overruled, Alexander, on the basis that Gilmer's arbitration clause was individually-"negotiated" and not part of a collective bargaining agreement. In Wright v. Universal Maritime, the Court was squarely presented with the issue of whether Gardner-Denver's prohibition of union-negotiated arbitration agreements covering individual statutory disputes was still good law, but the Court punted, holding only that the arbitration agreement at issue in that particular case was too general and did "not contain a clear and unmistakable waiver of the covered employees' rights to a judicial forum for federal claims of employment discrimination."
The Fourth Circuit, which seldom sees an arbitration clause it won't enforce, has since interpreted a relatively routine labor arbitration clause as constituting such a "clear and unmistakable waiver." Safrit v. Cone Mills Corp. The Supreme Court denied cert. The Second Circuit, in the earlier case of Rogers v. New York University and even more clearly in the present case of Pyett, is taking the opposite approach, arguing essentially that whether or not a union-negotiated arbitration clause "clearly and unmistakably" covers statutory claims, Gardner-Denver still controls and makes such a clause unenforceable.
Dennis Nolan argues that the Second Circuit
seems to go out of its way to pick a fight with the Supreme Court. If I read the decision correctly, the court simply refuses to acknowledge the Supreme Court's clear implication in Wright that a sufficiently precise arbitration clause in a CBA would waive an individual's statutory right to trial.
Was that the "clear implication" of Wright? It's certainly one fair reading of Wright, especially when that decision is juxtaposed with the Court's overwhelming endorsement of arbitration in every possible context over the past two decades. But perhaps Wright is a pregnant pause, an indication that the Court's endorsement of arbitration is finite.
For those who think the Court's pro-arbitration policy has gone too far, the Pyett case would be a good one for a grant of certiorari, for it presents squarely the Alexander policy rationale for declining enforcement of union-negotiated waivers. In Pyett, the union had expressly declined to pursue the employees' age discrimination claims because the union had contractually consented to the employees' transfer. If the employee's don't get a judicial forum for their age claims, they are unlikely to get any forum at all, since the union controls access to the arbitration forum established by the cba, and the union already has declined to pursue the claims. This would seem to be inconsistent with the Court's theory in Gilmer that arbitration is merely a "substitute forum" for litigation. Arbitration can't be a substitute forum if it effectively denies access to any forum at all.
My prediction: if the Court accepts cert in Pyett, look for it to tap the brakes by upholding Alexander and effectively overruling Safrit. If the Court denies cert in Pyett, I would take that as an indication that it wants to look for an "easier" case in which to overrule Alexander -- i.e., a case in which there is no clear conflict between the union's representation of a majority of employees in the bargaining unit and the union's representation of an individual in a discrimination claim.
Update: Comment by Dennis Nolan:
Your prediction is prudent ... although the fact that Wright was unanimous makes me wonder. Surely at the time it ruled in Wright, the Court knew the implications. If so, wouldn't it be a bit surprising for five members to back off?
On Wright itself, you suggest that the implication I found is only one way of reading the case. If the Supreme Court had done what the 2d Circuit did in Rogers and used alternative holdings there would be another way of reading the case. As it is, Wright has only one holding: this clause is too vague. That's a "negative pregnant," I believe, meaning that by relying on that basis, the Court was saying that a different clause might work. In most of the cases so far, like Safrit and Rogers, the Court could avoid the fundamental question by saying that the clause at issue isn't clear enough. In Pyett that doesn't look feasible.
The minimum wage poster at left is, of course, now outdated. Here's the new poster. There are also posters available in Spanish and Chinese, and for government employees, agricultural employees, employees in American Somoa, and employees in the Northern Mariana Islands.
The number of miner deaths this past couple of weeks (including the likely deaths of the Utah miners) brings to light yet again that mining is still an occupation with severe hazards. Even our advance technology cannot save miners when 1500 feet of solid rock caves in on top of them.
And according to this report in Fox News, mining accidents are made even more dangerous because workers do not always know when they are happening:
Tim Curtis was near the mine's entrance on Aug. 6 when he got a text message telling him of the collapse on his PED, or personal emergency device. The trapped men are believed to be about 3.4 miles from the mine's entrance.
"Where I was at, I felt nothing," Curtis said in an interview with The Associated Press. "It's just like you are here and three miles away are you going to hear a balloon pop?"
The three other men who escaped the mine unharmed were also believed to be relatively close to the entrance.
Of course, it would also be helpful if mine owners and the Mine Safety and Health Administration (MSHA) would do more to prevent these tragedies and stop blaming them on "Acts of God":
Of course, it would also be helpful if mine owners and the Mine Safety and Health Administration (MSHA) would do more to prevent these tragedies and stop blaming them on "Acts of God":
The cause of the collapse has not been officially established. Bob Murray, head of Murray Energy Corp. and co-owner of the mine, has insisted it was caused by an earthquake, but seismologists say there was no earthquake and that readings on seismometers actually came from the collapse.