August 24, 2007
America's Worst Bosses
BNA's Daily Report (subscription required) has the results of Working America's My Bad Boss Contest. Working America is an affiliate of the AFL-CIO which has been seeking non-traditional means to organize and involve workers. This contest (which is reported in more detail at Working America's website) is only a small part of some of the group's interesting work. On to the winners:
The entry "Cancer Can't Stop This Boss" by Pete Yonski of Illinois, won the contest with 1,276 votes in the final round. . . . The winning story described a father of three who was recently diagnosed with a rare form of cancer and who put in for paid leave and disability benefits, but lost the benefits because his boss threw away the paperwork, asserting he knew it would take months or years to resolve. . . .
Among the five runners-up was a story about a waitress whose boss knowingly hired her stalker, and a boss who, wanting to keep his employee working, did not tell him that his pregnant wife had called, bleeding and needing to go to the hospital. Other finalists included a woman who said her boss kept her making pizzas between contractions, and another entrant who said his boss would not allow health officials to be called while workers stood in sewage for almost a week while preparing food to serve.
The winner of the most outrageous story, dubbed "Business is Burning and so are the Employees," described a boss who told his staff that in case of a fire, one person in the office would leave every five minutes in order of seniority. The contest winner, who was the least senior member of the staff, stayed answering the help-desk phone for 45 minutes while smoke filled the room in his burning office building until a security officer yelled at him to evacuate.
This might be a sign that I should stop grousing about parking at my school.
ULP Charge Filed Against the NLRB
As we've posted on here, here, and here, the NLRB has challenged the FLRA's certification of an NLRBU unit that includes both Board- and General Counsel-side employees (how's that for alphabet soup). BNA's Daily Labor Report (subscription required) has reported that the FLRA, in response to the NLRBU's unfair labor practice charge, has filed a complaint:
The Federal Labor Relations Authority Aug. 15 issued an unfair labor practice complaint against the National Labor Relations Board alleging that it violated federal labor law by refusing to bargain with a recently certified unit that combined employees who report to the NLRB general counsel and employees who work for the five-member board (NLRB, FLRA Reg. Dir., No. WA-CA-07-0501, complaint issued 8/15/07). FLRA Regional Director Gerald M. Cole directed that NLRB file an answer to the complaint by Sept. 10 and scheduled an Oct. 9 hearing before an FLRA administrative law judge.
Withdrawal of Union Recognition Law About to Change?
Thanks to Ross Runkel at the NLRB Law Memo for highlighting the recently-decided case of B.A. Mullican Lumber
& Manufacturing Company (11-CA-19451, 19547; 350 NLRB No. 45) Norton, VA
July 31, 2007.
The decision itself is a rather mundane Section 8(a)(1), (a)(5) charge in favor of the employer, in which the Board found that there was not a failure to bargain in good faith by:
refusing to execute a collective-bargaining agreement because the parties had not agreed upon a substantive term of the agreement – that is, the effective date.
And against the employer on another issue:
[A]pplying the withdrawal-of-recognition test announced in Levitz Furniture Co., 333 NLRB 717 (2001) . . . adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition because the Respondent did not prove that the Union had lost the support of a majority of the unit employees.
More interestingly, Chairman Battista, in a concurrence, signaled his displeasure with the withdrawal of recognition test in Levitz Furniture, which was a response to the Supreme Court's decision in Allentown Mack concerning when it is permissible for an employer to challenge the majority status of a union. Ross summarizes Battista's views:
[Battista] expressed "substantial doubts" regarding Levitz but applied Levitz here in the absence of a full-Board majority to use the case as a vehicle to overrule or modify Levitz. In Chairman Battista's view, a Board election pursuant to an RM petition is superior to a unilateral withdrawal of recognition but RM petitions are often blocked by unfair labor practice charges; he explained that, for these reasons, he was "inclined" to retain Levitz subject to a requirement that an employer's RM petition would be processed notwithstanding the filing of unfair labor practice charges.
Sounds to me like an invitation for an employer to test the rule and allow the full Board with three sure Republican/employer votes to overrule the blocking charge rule that unions have had traditionally at their disposal to make sure they cannot be decertified based on an employer's prior allegedly unfair labor practices.
Does Chairman Battista really mean to suggest that an employer can fire the necessary number of union adherents, file a RM petition, and win the decertification election, all without having to worry that meritorious 8(a)(3) charges will postpone the election?
Is he serious?
NYC Taxi Strike - Fuhgettaboutit!
Just in from wcbstv.com:
After this month's transit meltdown, the last thing commuters want to deal with is a taxi strike that could have crippling effects on a city whose residents and tourists alike rely on the Taxi and Limousine Commission. A scary reality, however, is that such a strike could occur -- and in less than two weeks.
The New York Taxi Workers Alliance -- which accounts for more than 8,000 city drivers -- is threatening to curb their cabs on Sept. 5 if the Taxi and Limousine Commission does not get rid of their GPS system, which the union says invades a driver's privacy.
The debate over a taxi strike, however, begins first among taxi drivers. There are two strong sides to this debate, with some drivers who say a strike is imminent, while others who say no way, no how. It all depends who you ask.
This GPS issue is going to keep coming up in industries where employees leave the workplace facility and employers want to keep tabs on them to make sure they are not messing around. At least under the NLRA, the use of such devices would seem to be a mandatory subject of bargaining as a term and condition of employment, but it will be interesting to see whether it is a big enough issue for enough taxi cab drivers that they are willing to take a job action.
Hat Tip: Christopher Timmermans
August 23, 2007
Law Review Submission Policies
Read about them here.
Suspended NFL Players Sue Under ADA
PlanSponsor.com (free registration required) yesterday brought some recent current events into the realm of employment discrimination law:
Middle linebacker Odell Thurman of the Cincinnati Bengals and Tampa Bay Bucs cornerback Torrie Cox hope to have their suspensions ordered by Commissioner Roger Goodell overturned. The two filed discrimination claims with the Equal Employment Opportunity Commission (EEOC).
The lawsuits were filed with the EEOC under the Americans with Disabilities Act (ADA), and argued that the NFL deems Thurman ad Cox alcoholics. They claim their suspensions violate the
ADA, which forbids employers from discriminating against workers with disabilities.
According to ESPN.com, Thurman and Cox cite the suspension of former NBA player Roy Tarpley of the Dallas Mavericks. In Tarpley's case, the EEOC said that the NBA breached the
ADA when it refused to reinstate Tarpley, even though he passed drug screenings for four consecutive years.
This is an interesting dispute as the ADA has very specific language when it comes to treating alcoholism as a disability. Those currently abusing alcohol are not covered by the ADA, while those who have a record of alcoholism and have received treatment are considered disabled for purposes of the ADA. So whether Thurman and Cox are successful will largely depend on whether they are still currently abusing alcohol or whether they are in rehabilitation mode. There is also a subsidiary issue about how long you must be off alcohol before being consider to no longer be a current abuser. Some cases requires two months or more and if these NFL Players were recently suspended for failing a test, they might be out of luck. PS
This is an interesting dispute as the ADA has very specific language when it comes to treating alcoholism as a disability. Those currently abusing alcohol are not covered by the ADA, while those who have a record of alcoholism and have received treatment are considered disabled for purposes of the ADA.
So whether Thurman and Cox are successful will largely depend on whether they are still currently abusing alcohol or whether they are in rehabilitation mode. There is also a subsidiary issue about how long you must be off alcohol before being consider to no longer be a current abuser. Some cases requires two months or more and if these NFL Players were recently suspended for failing a test, they might be out of luck.
Forman on Improved American Retirement System
America is slowly building a new retirement system to carry us through the 21st century. The Pension Protection Act of 2006 made some significant improvements to the current system, and Congress is considering some additional changes.
In the 20th century, we saw retirement as a three-legged stool. Workers got their retirement income from Social Security, traditional pensions and personal savings.
The new retirement system is more like a four-legged stool, with workers getting their retirement income from Social Security, 401(k) plans, personal savings and part-time work....
Instead of having to quit work to get their pension benefits, workers can now phase into retirement. Starting this year, employers can allow workers over the age of 62 to reduce their hours at work and tap their pensions to make up for the lost earnings. The act also encourages employers to automatically enroll workers in 401(k) plans, and it encourages employers to get their workers to invest in growth-oriented, diversified portfolios, as opposed to conservative, “stable value” funds.
As a next step, Congress wants to protect 401(k) accounts from unreasonable administrative and investment fees. In that regard, on July 26th, Rep. George Miller, D-Calif. and chairman of the House Committee on Education and Labor, introduced legislation to provide workers with more information about the fees that they pay on their 401(k) accounts. That bill, the 401(k) Fair Disclosure for Retirement Security Act of 2007, HR 3185, also requires investment advisors and fund managers to disclose any kickbacks or other conflicts of interest, and it requires 401(k) plans to offer at least one low-fee, index fund in its investment lineup.
It's interesting to contrast the progress being made in the pension area with the continuing crisis in the health care area. If we as a society have the political will to make things better as far as retirement income, shouldn't health care reform, which our seniors depend on greatly, go hand-in-hand with these developments?
Just like the Pension Protection Act instituted many of the necessary reforms Jon discusses above, we need another legislative effort to reform ERISA in the health care arena. More specifically, it is time to reduce the scope of ERISA preemption and allow states to experiment with health care reform.
ABA Signals Support of Ledbetter Pay Discrimination Bill
CCH Workweek has a piece about the American Bar Association's decision to support current legislative attempts to overturn the Ledbetter decision, which makes it more difficult for employees claiming pay discrimination in the workplace to bring claims (previous coverage here):
At the American Bar Association's annual meeting in San Francisco, the ABA approved a report that Congress should act in response to a recent court ruling on pay discrimination. In May, the U.S. Supreme Court ruled in Ledbetter v Goodyear Tire & Rubber Co. that Lilly M. Ledbetter could not sue for equal wages because she did not file her complaint within the 180-day time limit specified in the 1964 Civil Rights Act.
The new policy states that the ABA urges Congress to "ensure that in claims involving discrimination in compensation, the statute of limitations runs from each payment reflecting the claimed unlawful disparity." If adopted by Congress, such a policy would effectively allow employees to sue for pay discrimination at any time it is discovered.
Needless to say, I fully support the ABA's position in this regard.
Workplace Injuries Fall Slightly Overall, But Increase in Some Industries
The August 20th edition of Inside OSHA (subscription required) reports:
The overall number and rate of workplace fatalities fell slightly in 2006, but the number of fatal work injuries in the construction, manufacturing, mining and the protective service industries increased, according to the Bureau of Labor Statistics (BLS) preliminary census data
of occupational injuries released Aug. 9.
The BLS counted 5703 total fatalities, 31 less than in 2005. The fatal work injuries rate dropped from 4.0 to 3.9 per 100,000 workers, the lowest rate since the fatality census data was first conducted in 1992.
The construction industry represented the highest number of fatalities, and that industry’s fatality rate went up 3 percent. The construction and extraction occupations and the transportation and material moving occupations accounted for 48 percent of 2006 workplace fatalities.
Manufacturing fatalities went up 14 percent. The rate increased from 2.4 to 2.7 fatalities per 100,000 workers.
The BLS reported that the coal mining industry fatalities more than doubled in 2006 because of multiple mine disasters. Overall mining fatalities increased 19 percent.
Unfortunately, based on recent tragic miner incidents in Utah and elsewhere, the number of mine fatalities will apparently rise again. In any event, this is certainly no time for workplace safety officials to pat themselves on the back. There is still much work to be done.
August 22, 2007
Cintas Hit With Million Dollar OSHA Fine
Plan Sponsor.com reported yesterday in its NewsDash that Cintas Corp., the uniform company, has been hit with a large OSHA fine because of the workplace death of a laundry worker. Cintas plans to challenge the fine:
Cintas Corp. said it plans to challenge the $2.78 million penalty handed to it by the Occupational Safety and Health Administration (OSHA) after the regulator pinned the uniform supplier with 42 willful safety violations, Business Insurance reported. OSHA found the violations in the
Tulsa, Oklahoma, laundry facility where a worker was killed in March when he fell into an operating industrial dryer while trying to clear a conveyor belt that was wedged with wet laundry. A subsequent inspection led to 42 citations against the company - and one of the largest penalties ever imposed by OSHA, which also cited Cintas for failing to train four employees responsible for clearing jams.
You can read more about this story here (free registration required).
If the safety violations are upheld on appeal, the only remaining question for me is whether the corporation will be held criminally accountable for this misconduct.
California Institute for Studying Labor on Legislative Chopping Block
The Los Angeles Times has the scoop on budget deliberations now going on in California which may signal the end of funding for an institute established to study unions and the workplace:
During state budget deliberations each year since 2003, Republican lawmakers have tried to scuttle funding for a University of California institute dedicated to studying organized labor and workplace issues.
And each year labor leaders and Democratic lawmakers have rallied to the program's defense. But this year, the fight is different. This year it's personal.
In January, the UC Institute for Labor and Employment was renamed the Miguel Contreras Labor Program, after the late labor leader.
The institute's foes argue that the state should not pay academics to teach unionization, but the program's supporters say attacks on the institute amount to affronts to Contreras' legacy . . . .
"We'd like to see it deleted," said Senate Republican Leader Dick Ackerman of Irvine. If universities "want to teach business classes, that's fine," he said. "They have business administration and financial planning classes. When it comes to labor, I think that's left to people when they get out" of college and "start getting out in the real world."
So according to State Senator Ackerman, labor law and other studies of industrial relations is not a relevant area of study? I better start looking for a new job and someone better call Cornell to tell them that the continued existence of their ILR school is an absurdity.
Hat Tip: Patrick O'Donnell
Supplementary Materials Available for Global Workplace
authors of The Global Workplace: International and Comparative Employment
Law—Cases and Materials announce the availability of the new 2007 Teachers’
Manual, which includes updates on developments through July 2007. Also
available are PowerPoint slides, sample exams and keys, a sample syllabus, and
These materials will be available at the Cambridge University Press website later, but you are invited to contact one of the authors to obtain them now: Bill Corbett (email@example.com); Susan Bisom-Rapp (firstname.lastname@example.org); Hilary Josephs (email@example.com); Mike Zimmer (firstname.lastname@example.org); or Roger Blanpain (email@example.com).
"Kid Nation" = Child Labor Violation?
The New York Times has the story about how a new reality show might be learning the reality of child labor laws under the Fair Standards Labor Act (FLSA):
The producers of a CBS reality show featuring 40 children living on their own in the New Mexico desert were warned by the state attorney general's office while the show was being taped last spring that they might be violating the state's child-labor laws, according to interviews with state officials and documents obtained Tuesday under the state's open records act.
The show, "Kid Nation," which is scheduled to premiere on CBS on Sept. 19, is a reality show whose premise is to take 40 children, ages 8 to 15, and place them in a "ghost town" in New Mexico to see if they can build a working society without the help of adults.
But after the production ended in mid-May, the parent of one child in the production complained to state officials that the children's treatment bordered on abuse. Four children received medical treatment for accidentally drinking bleach, one child was burned on her face with hot grease while cooking in an unsupervised kitchen, and most of the children were required to work 14 hours or longer per day. They received a payment of $5,000 for their participation.
In interviews last week, CBS contended the children were not employees because they were not performing specific work for specific wages. A lawyer for CBS, Jonathan Anschell, said the network had received no indication that it was violating the law.
Wow, I hope that isn't the reality that most children face in this country. Sounds more like China.
In fact, given the abuse of these children, I am wondering whether criminal child neglect charges are more suitable for these CBS officials.
Hat Tip: Brian Harris
August 21, 2007
Santos to Georgetown
Please give a warm welcome to Alvaro Santos, who has joined the Georgetown Law faculty via the Emerging Scholars Program at Texas. Santos specializes in international trade law, law and economic development, and transnational labor law. His research analyzes the impact of the global economy on domestic labor law and institutions. Santos is the author of The World Bank’s Uses of the "Rule of Law" Promise in Economic Development, in "The New Law and Economic Development: A Critical Appraisal" (Cambridge, 2006), which he co-edited with David Trubek. He received a J.D. with high honors from the Universidad Nacional Autónoma de Mexico and an LL.M. from Harvard Law School, where he is an S.J.D. candidate. He has also taught at Tufts University and the University of Turin in Italy. Santos will be teaching law and economic development, international trade, and a seminar on workplace regulation in the global economy.
Yesterday was the first day of my fall semester Employment Law course, and I did things much differently than I have before. Instead of covering the standard cases on employment at-will, I put together a series of simulations designed to illustrate the concept. Three students were assigned to be h.r. managers, and they were directed to lay off students who were assigned to be three different employees. The first employee, who was the sole breadwinner for a family that included a very sick child, tried sympathy. The second employee, a successful salesperson, tried to negotiate a severance package more generous than the h.r. person was authorized to grant. The third employee, a line supervisor, tried to intimidate and bully his way out of the layoff, and finally issued a "plausibly deniable" threat of workplace violence.
I thought the simulations went really well (I invite my students to comment to this post to share their thoughts). The simulations only took 8-10 minutes apiece, leaving plenty of time for discussion. (At first, I panicked -- two minutes into the first simulation, the h.r. person and the employee were going around in circles; but then I realized that I should leave it alone, and let the h.r. person try to figure out how to end the interview.)
The post-simulation discussion was far-reaching. It included things like orchestrating a layoff (choosing a room, physically setting up a room, handling security), handling the interview (showing empathy, keeping it from becoming too personal (?), reacting to various emotions, ending the interview when the employee wants to keep arguing), and risk-avoidance (avoiding a scene, avoiding potential lawsuits, avoiding workplace violence). I think the simulations also demonstrated how important a job can be to a person, and how traumatic it can be to lose a job.
I figure most of my students will be involved in a discharge sooner or later. The ones who practice employment law will either be advising clients on how (not) to do it, or cleaning up the mess from discharges done badly. Even a general-practitioner is likely to be faced with firing a secretary or legal assistant at some point.
After the class, a student who had played the role of an h.r. person commented to me that had been much more difficult than he had expected to fire someone.
If anyone would like to see or use the simulations, drop me an email and I'll zap you a copy.
A Sexual Orientation BFOQ for Gay Bars?
This is not the exact issue in an interesting case that Arthur Leonard brings to my attention on Leonard Link from Australia. Art describes the case thusly:
Several months ago the Australian press was full of commentary about a decision by the Victorian Civil and Administrative Tribunal, granting a gay pub an exemption from the province's Equal Opportunity Act so that it could control its door in order to preserve the gay male character of the establishment.
We've since had a chance to read the Tribunal's decision, written by Deputy President McKenzie. See Peel Hotel Pty Ltd,  VCAT 916 (May 24, 2007).
The owner of the pub said that his purpose was to provide a venue where gay men could freely socialize without suffering the insults and risks attendant on gay socialization in mixed venues or the streets or other public spaces. He said that groups of straights and women had taken to coming into the establishment, open all night and providing high quality dance music, and undermining these purposes, sometimes engaging in antagonistic conduct towards the gay male patrons. He also testified that there was already a lesbian bar in town, but that groups of lesbians had come in and commandeered the pool tables in a way that he found intimidating.
The judge was most sympathetic in granting the exemption, finding that failure to do so would be, in effect, to allow anti-gay discrimination against the bar's intended patrons.
So my slightly different question is whether such a gay pub could refuse to hire heterosexual employees because of the character of the establishment? (assume with me that we are in a jurisdiction where sexual orientation is covered and the bfoq exception applies).
In thinking about this question, it seems that the most analogous situation would be when we see religious discrimination in employment. Not in the sense that there are religious exemptions under Title VII, but in that one's sexual orientation like one's religion is not obvious. Just like you usually don't know the religion of the bartender when you walk into an establishment (unless he is wearing religious garb or other symbols), you probably would also not know the sexual orientation of the bartender.
Does the lack of visibility of a person's protected characteristic make it more or less protected under anti-discrimination laws? My sense is that because the bfoq inquiry is not about customer preference, but about the essence of the business, the employer should be given some leeway in maintaining the authenticity of his or her establishment.
If the gay pub owner is concerned that a heterosexual bartender would antagonize his patrons (not because he is heterosexual per se, but because of responses to some interview questions), shouldn't he be able to not hire him or her in the first place? But maybe the answer to this question means there shouldn't be a blanket employment exclusion of all heterosexuals, but a more nuanced determination of whether an employee would fit within the culture of the place? Or does this is just introduce subjective biases in another form?
Summary of ERISA Case Law on Conflicts Between SPD and Plan Language
As I get ready to begin teaching employee benefits law this semester, one of the first topics that we discuss is reporting and disclosure requirements for employer-provided employee benefit plans. And within that topic, is the sub-topic of what language controls if there is a conflict between the plan language and the language in the summary plan description (SPD). And finally and even more specific question is whether a claimant must rely on the conflicting language to his or her detriment in order to have a successful claim based on the SPD language.
Roy Harmon at the Health Plan Law Blog has a helpful and very comprehensive summary of circuit case law just on this topic. Consensus: none; there is a split among the circuit about whether actual reliance on SPD language is necessary.
A Counterintuitive Argument for Labor Law Reform
David Tannenbaum has an interesting guest post on the ACS Blog about how the subversion of labor law by the weaknesses of the NLRA may actually lead to revitalization for the labor movement in the United States. He is largely describing a theory advanced by Benjamin Sachs (Yale) whose labor law article was featured here:
In a study this year by the Pew Research Center, two-thirds of the public said that "labor unions are necessary to protect the working person." But the conventional wisdom has long been that unions are dying, and it is not clear what role law has to play in saving, or justifying, what many regard as an anachronism in a market economy.
Benjamin Sachs, a fellow at Yale Law School, describes in the new issue of the Harvard Law & Policy Review how states, municipalities, employers, and workers' organizations have revitalized labor law by subverting our national labor law regime.
The seventy-two year old National Labor Relations Act (NLRA) suffers from several crippling pathologies: it fails to protect workers' ability to choose collective representation, puts employers and workers into unnecessarily rigid and adversarial positions, and leaves out some of the country's most vulnerable and exploited workers . . . .
As Sachs describes it, the labor movement, like many social movements in our history, has generated new legal regimes that have the potential to break a logjam at the intersection of economics, race, gender, and class.
The movement has deployed many of the strategies coming to the fore among progressive legal thinkers, including experimentation at the local level and privately negotiated social contracts. Sachs's theory of a "hydraulic demand for collective action" will be a proving ground for many of these ideas.
I hate to be a doubting Thomas (no, really I do), but I wonder if this demand for collective action that Sachs describes can overcome the new regime of individual rights established by a vast array of federal and state employment statutes. Perhaps, Sachs is right that the labor movement of the future will need to use existing statutory schemes and other private ordering arrangements to advance its goals in the new global economy.
A Dream?: No Billable Hours for Law Firm Associates
Ford & Harrison, a 190-attorney labor and employment firm, has tossed out billable-hour requirements for first-year associates. The program aims to close the practical-skills gap of law school education and increase value to clients. The firm also hopes it will enable associates to handle meatier matters more quickly.
Overall, Ford & Harrison's leaders expect the new program to help retain beginning lawyers and appease clients.
Anyone else think it less than coincidental that a labor and employment law firm would be the first to try this experiment?
August 20, 2007
Could This Happen in the U.S.?
My arbitrator friends may correct me, but when I was in practice I saw some crazy stuff come out of labor arbitrations (but not as crazy as this) (via CTV.ca):
A Montreal School Board has been ordered to rehire a teacher who failed to disclose that he had been convicted of killing his wife in 1990 . . . .
Miguel pleaded guilty to manslaughter in 1990 after a heated argument with his wife at their home on Montreal's west island, said CTV Montreal's Rob Lurie.
He was sentenced to seven years in jail, and upon his release in 1998, he was hired to teach electronics at the Montreal trade school Ecole des metiers de la Construction de Montreal.
On an application form he filled out for the job, Miguel said he had never been convicted of a crime.
It wasn't until 2004 that the school discovered Miguel's criminal record, through a worker's compensation claim, and terminated his employment.
Miguel's union challenged his dismissal, and an arbitrator has ruled that under the Quebec charter of rights, he can't be fired for a crime not linked to his job.
I'm all for allowing rehabilitated felons to put their lives back together (although maybe not a convicted murdered in a school setting), but the guy lied on his resume! Shouldn't resume fraud be a dischargeable offense and considered an offense "linked to his job"?
What is the emoticon for aghast?
Hat Tip: Ravi Malhotra