Saturday, September 8, 2007
Joanna Grossman (Hofstra) and Deborah Brake (Pitt) have posted on SSRN: The Failure of Title VII as a Rights-Claiming System.
Here's the abstract:
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII's timely complaint and retaliation doctrines create an untenable framework for employees in need of the law's substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.
This is not only a timely topic because of the Ledbetter decision and the recent Congressional attempts to overturn it, but also brings to light an important debate in the larger world of employment law about which approaches are the most effective at tackling workplace disputes: self-regulation, arbitration, or traditional litigation. Let the debate begin with this provocative and insightful article.
- Vivek Wadhwa, Guillermina Jasso, Ben Rissing, Gary Gereffi, & Richard B. Freeman, Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America's New Immigrant Entrepreneurs, Part III (925).
- Vivek Wadhwa, Ben Rissing, AnnaLee Saxenian, & Gary Gereffi, Education, Entrepreneurship, and Immigration: America's New Entrepreneurs, Part II (337).
- Keith Cunningham-Parmeter (photo above), Fear of Discovery: Immigrant Workers and the Fifth Amendment (139).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (117).
- Laurence R. Helfer, Monitoring Compliance with Un-Ratified Treaties: The ILO Experience (38).
- Matthew D. Hutcheson, Retirement Plan Disclosure: Ethical Principles and Legal Obligations (200).
- Kenneth M. Rosen, Fiduciaries (163).
- Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (117).
- Jeffrey N. Gordon, The 'Prudent Retiree Rule': What to Do When Retirement Security Is Impossible? (105).
- Zvi Bodie (left), Jonathan Treussard (right), & Paul Willen, The Theory of Life-Cycle Saving and Investing (92).
Friday, September 7, 2007
Thanks to Jon Forman (Oklahoma) for forwarding this report from the Congressional Research Service (CRS) entitled: CRS Report for Congress on Pension Sponsorship and Participation: Summary of Recent Trends (Updated September 6, 2007).
Here are some highlights (actually lowlights) from the report:
According to the Census Bureau’s Current Population Survey (CPS), the number of private-sector workers between the ages of 25 and 64 whose employer sponsored a retirement plan fell from 52.5 million in 2005 to 51.2 million in 2006. The number of private-sector workers who participated in employer-sponsored retirement plans fell from 43.1 million in 2005 to 42.0 million in 2006. The proportion of 25 to 64 year-old workers in the private sector who participated in employer-sponsored retirement plans declined from 45.0% in 2005 to 43.2% in 2006. Between 2000 and 2006, the number of private-sector workers between the ages of 25 and 64 who participated in employer-sponsored retirement plans fell from 46 million to 42 million, and the percentage who participated fell from 50.3% to 43.2%
All disturbing trends, especially in a country where retirement saving is already way too low. It still remains to be seen whether the recent enactment of the Pension Protection Act of 2006, including some of its provisions which provide for automatic enrollment in 401(k) plans, will stem the tide.
collects legal research topics submitted by practitioners for law students to explore in faculty-supervised writing projects for academic credit. Topic authors will receive a copy of the resulting student papers, which ACS will also post in a searchable online library. By connecting law students and faculty with the research needs of public interest organizations and advocates, ACS ResearchLink will become an increasingly comprehensive and powerful engine for change, while also enhancing the relevance and influence of student academic scholarship.
This seems to me a great idea. I vividly recall as a student the difficulty of choosing a novel, timely, relevant paper topic at the beginning of a law school course, when by definition I knew very little about the subject of the course. Because the semester-long time-line for student papers is unlikely to correspond with briefing schedules, it's unlikely that practitioners will use this as a source of free legal research work -- but practitioners working on long-term projects could benefit from getting a different perspective on the legal issues on which they are working. One caveat: law school professors teaching seminar courses and offering independent studies will need to regularly peruse the site's online library to ensure that student papers are not being recycled.
Hat tip: Mike Whiteman.
Thursday, September 6, 2007
The Institute for Policy Studies has just released Executive Excess 2007: The Staggering Social Cost of U.S. Business Leadership: 14th Annual CEO Compensation Survey. No surprises; lots of discouraging numbers. Hat tip: Carol Furnish.
In a case reminiscent of City of San Diego v. Roe (U.S. 2004), in which a police officer was terminated for posting pornographic materials of himself in uniform on eBay, now comes a case, Dible v. City of Chandler, 05-16577 (9th Cir. Sept. 5, 2007), where a city terminated the employment of a police officer because he participated off-duty in producing and performing in a sexually-explicit web site of his wife:
In January of 2002, the Chandler Police Department learned that one of its officers, Ronald Dible, was running a website featuring sexually explicit photographs and videos of his wife. After initially placing Ronald Dible on administrative leave and conducting an internal investigation into his involvement with the website, the City terminated his employment as a police officer . . . .
The Dibles did not intend to express any kind of message or engage in social or political commentary through the material they posted on their website. They participated in those activities to make money; it was as simple as that . . . .
Rightly believing that his participation in the website would violate police department policies, Ronald Dible did not inform any department officials about it. He did, however, tell a few people about it, including a fellow police officer, whom he urged to start his own website. The officer eventually did.
In a 2-1 decision, the Court found that:
The major issue before us is whether Ronald Dible’s First Amendment right to freedom of speech was violated when he was terminated for maintaining and participating in a sexually
explicit website with his wife, Megan Dible . . . .
Whatever a periplus of the outer limits of public concern might show, it was pellucid that Roe’s [from City of San Diego] vulgar behavior would be discovered to be outside of those borders . . . .The same is true of Ronald Dible’s activities in this case. They did not give the public any information about the operations, mission or function of the police department, and
were not even close to the kind of private remarks that the Court has countenanced. His activities were simply vulgar and indecent . . . .
Applying the NTEU line of cases dealing with speech off-duty and not-related to work, the Court found:
If a statement must be one of public concern when it consists of unrelated activity away from the workplace, Ronald Dible’s conduct was no more protected than it would be if the
activity were related, and the Dibles’ claim would fail on that account. But, suppose passing the public concern test is not required when unrelated expressive activity takes place away
from the work setting. What then? Again, we must balance the asserted First Amendment right against the government’s justification. See Roe, 543 U.S. at 80, 125 S. Ct. at 524. The
Dibles’ First Amendment claim cannot survive that balance either.
Interestingly, the dissenting judge in this case makes the point that First Amendment protections should not depend on whether a judge finds the underlying conduct "vulgar and indecent," and that this was, in any case, a NTEU-type case where the officer's conduct was not job-related enough to come under the Connick/Pickering framework.
But as I argued in The (Neglected) Importance of Being Lawrence: The Constitutionalization of Public Employee Rights to Decisional Non-Interference in Private Affairs , 40 U.C. Davis L. Rev. 85 (2006), I would think that this case should have also been analyzed under substantive due process and a modified Pickering analysis. In such an analysis, there is no public concern requirement, and the only issue is whether the public employee's right to decisional non-interference in private affairs (derived from Lawrence v. Texas) outweighs the efficiency interests of the police department.
Now, the result in Dible might be the same as the First Amendment analysis because of the amount of disruption Dible's conduct apparently caused to the police force (indeed Dible's right to privacy and right to association claims were also unsuccessful), but I can imagine in another case similar to this one where most other employees do not know about the sexually-explicit off-duty conduct. In such a case, there might be a better outcome for plaintiffs under a Lawrence/substantive due process analysis under the Fourteenth Amendment than under a free speech/expression analysis under the First Amendment.
Hey, at least this wasn't a Garcetti case where the police officer was acting pursuant to his official duties!
Hat Tip: How Appealing
Anecdotes about the two men pictured at left: NLRB Chair Robert Battista (left) and NLRB General Counsel Ronald Meisburg (right). Alan Hyde (Rutgers-Newark) will be introducing them on Monday, September 10, at a celebration in Newark of the 50th anniversary of the opening of the Newark regional office. Please respond to Alan directly.
University of Pennsylvania Journal of Labor and Employment Law
Volume 9, Number 4, Summer 2007
- Alvin L. Goldman (left), Selecting the Correct Standard for Judicial Review of Airline Grievance Arbitration Decisions, p. 743.
- Cheryl L. Howard, Romeo and Juliets: A Modern Workplace Tragedy, p. 805.
- Shelby D. Green (right), To Disclose or Not to Disclose? That Is the Question for the Corporate Fiduciary Who Is Also a Pension Plan Fiduciary Under ERISA: Resolving the Conflict of Duty, p. 831.
- Adrian McDonald, Through the Looking Glass: Runaway Productions and “Hollywood Economics”, p. 879.
Sheila Bapat, Fighting Collectively for Contraceptive Equity: Class Action Litigation and Emerging Labor Union Support for Contraceptive Coverage, p. 951.
Samantha A. Hill, The ADA’s Failure to Protect Drug Addicted Employees Who Want to Seek Help and Rehabilitation, p. 973.
- Xun Zeng, Enforcing Equal Employment Opportunities in China, p. 991.
The House of Representatives is again ready to consider the Employment Non-Discrimination Act (ENDA) (HR 2015), which would add sexual orientation and gender identity and expression to the already protected categories under Title VII.
Lee Badgett, Research Director for the Williams Institute on Sexual Orientation Law and Public Policy at UCLA, testified yesterday before the House Committee on Education and Labor (Subcommittee on Health, Employment, Labor, and Pensions).
Here are some highlights from the William Institute press release:
Badgett summarized findings from a recent Williams Institute study, Bias in the Workplace, which reviews 50 studies over the last decade and demonstrates a disturbing and consistent pattern: sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country.
In her testimony before the House Committee on Education and Labor (Subcommittee on Health, Employment, Labor, and Pensions), Badgett stated that, “Each survey documents numerous experiences of being fired, being denied a job, or some other form of unequal treatment in the workforce that stemmed from these individuals’ sexual orientation or gender identity.”
Badgett’s testimony cited a study showing that LGBT people who work in companies with a nondiscrimination law are more likely to be out with regard to their sexual orientation or gender identity. Research shows that coming out yields less conflict between work and personal life, greater job satisfaction, more self-esteem, and better physical health.
Here is Lee Badgett's full testimony before the Congressional subcommittee.
Wednesday, September 5, 2007
The NLRB has just ordered a rare oral argument to be held on November 9, at Philadelphia's City Hall--which coincides with the annual meeting of the ABA's Labor and Employment Law. The Board is also seeking amici briefs, which must be filed by Oct. 2 (for more information, see the Board's website). The case, New York New York Hotel & Casino, No. 28-CA-14519, is on remand from the D.C. Circuit. At issue is whether employees of a contractor operating on the casino's premises are considered employees of the casino under the Republic Aviation/Lechmere analysis. As reported by the BNA Daily Labor Report (subscription required):
The board originally held in two decisions in July 2001 that the New York New York Hotel and Casino violated the National Labor Relations Act by prohibiting handbilling in certain nonwork areas by off-duty employees of Ark Las Vegas Restaurant Corp., which leases space from the hotel/casino and operates two restaurants and several fast-food outlets in a food court. However, the U.S. Court of Appeals for the District of Columbia Circuit in December 2002 reversed the board's decision and remanded the case for further consideration. . . .
The board found that "employees of a subcontractor of a property owner who work regularly and exclusively on the owner's property are rightfully on that property pursuant to the employment relationship, even when off duty." New York New York failed to show that its ban on handbilling was necessary to maintain work production and discipline, the board said.
However, the District of Columbia Circuit questioned whether the Ark employees would have the same rights as the casino employees to handbill on casino property. The "critical question" under U.S. Supreme Court precedent is "whether individuals working for a contractor on another's premises should be considered employees or nonemployees of the property owner," not whether they are invitees rightfully on the property, the appeals court said. It found that the NLRA "confers rights upon employees, not nonemployees, and that employers may restrict nonemployees' organizing activities on employer property."
In its order, the Board has listed the five questions it will consider based on the D.C. Circuit's remand:
1. Without more, does the fact that the Ark employees work on NYNY’s premises give them Republic Aviation rights (324 U.S. 793 ) throughout all of the non-work areas of the hotel and casino?
2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY’s employees?
3. Or should they be considered the same as nonemployees when they distribute literature on NYNY’s premises outside Ark’s leasehold?
4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?
5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)? Compare United Food & Commercial Workers, 74 F.3d at 298. (Derivative access rights, the Supreme Court has held, stem ‘entirely from on-site employees’ Section 7 organizational right to receive union related information.’ ITT Industries, 251 F.3d at 997.)
As I wrote in an article last year, I think the Supreme Court has put far too much weight on the employee/non-employee distinction, in part because it does a poor job addressing the issues at play in situations like this. However, that's the law the Board has to deal with and its conclusions may have a broad impact given the growth of site-sharing relationships. I agree with the Board's original take that an employee who has regular access to the area used for handbilling should enjoy Republic Aviation rights, rather than facing all-but-certain exclusion under Lechmere. Unlike nonemployee union organizers, those employees are exercising their right to engage in collective action in an area that they have access to because of their employment. But, I wouldn't bet on that being the outcome.
Keeping with the theme that Rick started today about bring new blogs to readers' attention, there is now a blog, Legal Scholarship Blog, jointly run by the University of Pittsburgh and the University of Washington, which will highlight, among other things, law faculty conferences, call for papers, faculty colloquium, and other presentations.
Here's the announcement from the bloggers of the Legal Scholarship Blog:
We would like to announce the creation of a new blog, Legal Scholarship Blog: http://legalscholarshipblog.com. This blog is a collaborative service from faculty and staff at the University of Pittsburgh School of Law and the Gallagher Law Library at the University of Washington School of Law. The blog features law-related calls for papers, conferences, and workshops -- with links to relevant websites and papers as well as an event calendar -- along with scholarly resources for Research Deans as well as current and prospective law professors.
The Legal Scholarship blog would also appreciate individuals sending information about upcoming events to them to post.
Hard to believe, but Dennis Nolan brings to my attention the fact that there was nary a labor day parade in NYC, as reported by the New York Times:
If you wanted to see labor in action on Labor Day, you’d have done well to visit a hospital’s obstetrics wing. You certainly weren’t going to find much of consequence in New York yesterday that involved unions.
In this city where Labor Day parades got their start, in 1882, workers haven’t strutted their stuff on the holiday for quite a while. For them, as for everyone else, it has long been a day for beaches and barbecues. Besides, it is nearly impossible to compete with the blockbuster West Indian American Day Carnival Parade in Brooklyn, which absorbs the day’s energy, not to mention many politicians.
But at least organized labor usually shows the flag on the Saturday after Labor Day, with a march along Fifth Avenue. Not this year. The New York City Central Labor Council called off the 2007 parade, replacing it with a rally on Saturday at the World Trade Center site, focused on health issues affecting those who toiled there after 9/11.
Now, I don't want to suggest that the lack of a parade on one day of the year signals any weakness on the part of organized labor, but especially when unions appear poised to make significant gains in many different areas in the coming years, a showing of union pride where it all started wouldn't have hurt.
The Labor Studies Journal is inviting manuscripts for a special issue on workers' rights as human rights, in coordination with the 2008 UALE conference.
For details, please go the the conference website, and scroll down to the box, "Labor Studies Journal Call for Papers." http://www.uale.org/conference_2008/Conference_2008.html.
Thanks to Christopher Timmermans for keeping me up-to-date on the NYC Taxi strike, which we wrote about previously here.
Now the latest update (via WCBSTV.com):
Get ready to put on your walking shoes! A fight with the city over high-tech equipment has New York City taxi drivers on strike Wednesday.
At the 5 a.m. bewitching hour, a significant number of cabbies parked their vehicles for 48 hours to protest new rules requiring New York City cabs to carry electronic equipment, including GPS.
As CBS 2 News has reported, the electronic device at the center of the storm allows passengers to see where they are going, but it also allows cabbies to be tracked, along with a credit card processor that cabbies say eats into their profits.
And that's why they're ready to put the brakes on the bid to mandate the technology in every New York City taxi.
But not everyone is so sure that there is solidarity across the Board with this strike:
Several other drivers' groups that represent thousands of city cab drivers have released statements to CBS 2 News opposing the strike, and Mayor Michael Bloomberg predicted Tuesday that "few, if any" cabbies would strike.
However, there has been a noticeable affect on the streets of New York during the morning rush. Riders report to CBS 2 News that transit hubs like the Port Authority Bus Terminal and Penn Station have far fewer taxis than usual, forcing riders to share cabs.
Mayor Bloomberg announced contingency plans which have been implemented in response to a labor action by some drivers of yellow taxis today. The plan, designed to optimize space in yellow taxis that are operating, includes group rides and flat fares, and encourages the use of mass transit.
The City better hope that "few, if any," cabbies actually continue on strike.
Congratulations to Alex Hurder, who has just been appointed Chair of the American Bar Association Commission on Mental and Physical Disability Law. The role of the commission is to advise the entire American Bar Association and participate in the development of policy regarding disability rights.
“I am honored to be appointed chair of the Commission on Mental and Physical Disability Law,” said Hurder. “My goal for the year is to help expand job opportunities for lawyers with disabilities and to make law schools more welcoming to students with disabilities.”
Hurder said he wants to educate employers of the advantages of hiring people with mental or physical disabilities.
“Many people with disabilities have strengths, abilities and talents that are incredibly useful to a law firm or judgeship,” said Hurder. “People with disabilities learn to be problem-solvers and that is a skill that lawyers need. The legal profession has a history of enforcing rights, but needs to do a better job of following its own advice.”
A few weeks ago, we linked to the Kilpatrick Stockton EFCA Update site in a post about the rulemaking petition regarding minority unions. Richard Hankins, of that firm, writes to tell us of the firm's new blog WorkplaceHorizons. The site not only provides running commentary on labor and employment news and trends, but also provides a "watch list" of proposed legislation -- scroll down the list, clink on the link, and you have an instant update on the status of the proposed legislation. This is a fantastic resource.
Another blog worth noting (I found this one while perusing WorkplaceHorizons): Evil HR Lady:
Why am I evil? Well, I'm not, but that's the perception of all of us in HR. Need to fire someone? Come to HR. Need to explain to someone why, even after working their rear end off all year, that their annual increase is 2.7%? Come to HR. Need to come up with new mountains of paperwork? Come to HR. So, come join me on the Evil Side. Oh, and send me your HR questions.
Paul Secunda has just posted on SSRN his article: Whither the Pickering Rights of Federal Employees? Here's the abstract:
As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978 (CSRA of 1978). This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First Amendment retaliation claims under Section 1983.
The issue examined in this paper for the first time is whether an alternative remedy of bringing a First Amendment Pickering claim to an administrative judge designated by the Merit Systems Protection Board (Board), and then potentially to the Board itself, and finally to the Federal Circuit Court of Appeals, provides meaningful redress for federal employees with First Amendment Pickering claims.
An empirical analysis of all First Amendment Pickering cases decided by the MSPB and the Federal Circuit leads to a startling finding: there has not been one successful employee claim of this type under the administrative scheme. My conclusion is that because there is not meaningful redress, Bush v. Lucas should be revisited and overturned, and a Bivens claim implied to vindicate the First Amendment interests of federal employees.
The bold text says it all. It's broke & needs to be fixed. Nicely done, Paul.
Tuesday, September 4, 2007
Recent changes in farming show yet another ramification of the U.S.'s inability to create a sensible immigration policy. A growing number of Western farmers are avoiding increasingly serious immigration problems by moving to Mexico. As reported in the NY Times:
A sense of crisis prevails among American farmers who rely on immigrant laborers, more so since legislation in the United States Senate failed in June and authorities announced a crackdown on employers of illegal immigrants. An increasing number of farmers have been testing the alternative of raising crops across the border where many of the workers are, according to growers and lawmakers in the United States and Mexico.
Western Growers, an association representing farmers in California and Arizona, conducted an informal telephone survey of its members in the spring. Twelve large agribusinesses that acknowledged having operations in Mexico reported a total of 11,000 workers here. . . . Precise statistics are not readily available on American farming in Mexico, because growers seek to maintain a low profile for their operations abroad. But Senator Dianne Feinstein, the California Democrat, displayed a map on the Senate floor in July locating more than 46,000 acres that American growers are cultivating in just two Mexican states, Guanajuato and Baja California. . . .
In the past, some Americans have planted south of the border to escape spiraling land prices and to ensure year-round deliveries of crops they can produce only seasonally in the United States. But in the last three years . . . labor uncertainties have become a major reason why more farmers have shifted to Mexico. . . .
The Department of Labor has reported that 53 percent of the 2.5 million farm workers in the United States are illegal immigrants, though growers and labor unions say as much as 70 percent of younger field hands are illegal.
The groups responsible for sinking the attempt to reform U.S. immigration laws have clearly won in the short term, as the Administration is now stepping up enforcement without acknowledging the realities of immigrant labor in the country. This strategy is self-defeating; our economy is far too reliant on the work of immigrants to make enforcement alone beneficial.
The Washington Post is reporting on attempts to organize nannies into the National Alliance of Domestic Workers. The D.C. area group which, like other domestic workers, cannot be recognized as a union under the NLRA, appears to be primarily focused on lobbying, particularly for a "Domestic Worker Bill of Rights":
[T]he nannies want to be assured of at least minimum wage, $6.15 an hour, or $7.15 in the District. A similar "nanny bill" was passed in New York City a few years ago by another member of the alliance, which represents 200,000 nannies from 42 countries. . . .
The Bureau of Labor Statistics which lumps nanny wages together with other child-care workers, found that of 1.3 million child-care jobs in 2004, workers were paid between $5.90 and $12.34 an hour, with a mean annual wage of about $17,000 a year.
A 2006 survey, done for the Montgomery [County, MD] council, of about 280 nannies in the county found that live-in nannies generally are paid $6.29 an hour and that a majority of live-out nannies received minimum wage or more. But the vast majority did not get overtime, 20 percent had paid vacations, 15 percent had paid sick days, 28 percent reported that money was deducted for Social Security taxes and fewer than 16 percent had health insurance.
Even if a local minimum wage is enacted, it will be difficult to enforce given that many nannies are from other countries and often unaware of their rights. The group is wise, therefore, to also educate families employing nannies. As one group leader states, "[f]or a lot of people, hiring a nanny is the first time that they become an employer. . . . Even though they're well-meaning, they don't have the proper guidelines. We want to help them do the right thing."