Workplace Prof Blog

Yale Pocket Part Call for Papers

The Yale Law Journal Pocket Part is now holding a call for papers on state law topics. According to Lucy Wang, Chair of the Pocket Part, they have a particular interest in state workplace law. The announcement reads:

The Yale Law Journal Pocket Part is soliciting commentaries for two end-of-year issues: one issue will focus on new developments in state courts, and the other will focus on new developments in state legislatures. Our goal is to bring critical focus to an area of lawmaking that deserves greater attention in the legal literature, and we invite you to submit a commentary on a state law topic of your choosing.

 

Commentaries may explore a legal development at the state level that has not been extensively reviewed in legal scholarship and the popular press, or present a novel argument on a timely issue that has received attention.

 

Submissions should be no more than 1,500 words. We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website, www.thepocketpart.org, and follow the link for “Submissions.”

 

The deadline for submissions for both issues is Friday, November 2, 2007.

-JH

Top-5 International Employment & Labor Law SSRN Downloads

1. 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 (1213).
2. Yaraslau Kryvoi, Why European Trade Sanctions Do Not Work (59).
3. David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (46).
4. David J. Doorey (photo above), The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (27).
5. Susan Bisom-Rapp, Globalization, Equality and Nondiscrimination: An Interdisciplinary Perspective from the U.S. on Diversity Programming (25).

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Top-5 Benefits/Compensation/Pension SSRN Downloads

1. David I. Walker, Unpacking Backdating: Economic Analysis and Observations on the Stock Market Option Scandal (120).
2. Brett McDonnell, Two Goals for Executive Compensation Reform (63).
3. Shlomo Benartzi, Ehud Peleg, & Richard H. Thaler, Choice Architecture and Retirement Savings Plans (62).
4. Fayez A. Elayan, Thomas O. Meyer (left), & Jennifer Li (right), Expensing Executive Stock Options: The Agency Problem and Structure of Management Compensation (53).
5. Phelim P. Boyle, Ranjini Jha, Shannon Kennedy, & Weidong Tian, Stock and Option Proportions in Executive Compensation (48).

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Welcome, Wendy Greene

Workplace Prof Blog extends a warm welcome to Wendy Greene, who has started teaching her first year at Samford University Cumberland School of Law.  I had the pleasure of meeting Wendy at the Denver/Colorado Colloquium on Current Scholarship in Labor and Employment Law, where she presented on Title VII: What’s Hair (And Other Race-Based Characteristics) Got To Do With It?  Here's Wendy's bio:

A native of Columbia, South Carolina, Professor Greene joined the Cumberland School of Law faculty in 2007. She is a graduate of Xavier University of Louisiana and Tulane University Law School in New Orleans, Louisiana. While at Tulane, Professor Greene clerked for the South Carolina Department of Social Services Office of the General Counsel, the District of Columbia Office of Human Rights, and the governmental relations firm of R. Duffy Wall & Associates. Also as law student, Professor Greene represented indigent clients in civil rights cases for the Tulane Law Civil Litigation Clinic.

Following graduation from Tulane, Professor Greene was employed with the Capitol Hill Group, a Washington D.C. lobbying firm, and Neel and Hooper, P.C. in Houston, Texas, a boutique labor and employment law firm specializing in the representation of management. Most recently, Professor Greene completed the General LL.M. program at the George Washington University Law School in Washington D.C. and submitted her masters’ thesis, a comparative of racial determination in Brazil and the United States.

Professor Greene teaches Equitable Remedies, Race and the Law, and Employment Discrimination. Her additional teaching and research interests include: civil rights, constitutional, property, and comparative slavery and race relations law.

Welcome to the Adacemy, Wendy!

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Dreadlocked TSA Employee Loses RFRA Claim

In Francis v. Mineta, No. 06-1293 (3rd Cir. October 11, 2007), the Third Circuit has held that a Transportation Security Administration (TSA) Security Screener does not have a Religious Freedom Restoration Act (RFRA) for being discharged for wearing dreadlocks.  Instead, Title VII is the exclusive remedy.

Here is some of the opinion:

Francis alleges that he informed Betz that he would not cut his dreadlocks, and told him that the refusal to cut his dreadlocks was based on his religious beliefs. Francis further alleges that Betz then ordered him to sign a separation agreement, terminating his employment. Thereafter, Francis filed the instant suit in the District Court . . . .

[The Senate report on RFRA] explains: “[n]othing in this act shall be construed as affecting religious accommodation under title VII of the Civil Rights Act of 1964.”

Based on previous precedent and legislative history, the opinion seems perfectly correct.  It should be noted that were it otherwise, federal employees could back a run-around the administrative scheme involving the EEOC established under Title VII.  Although some employees are able to do this for race discrimination claims under Section 1981, federal employees have long been held not to be able to do avoid the Title VII administrative scheme under Brown v. GSA.

Hat Tip: John Sargent

PS

California Adopts Military Spouse Leave Law

Morgan Lewis provides the following lawflash about this development in California labor and employment law:

On October 9, Governor Schwarzenegger signed California Assembly Bill (AB) 392 into law. AB 392 adds Section 395.10 to the California Military and Veterans Code and creates a new leave of absence right for spouses of military personnel while such personnel are on a leave of absence from deployment. AB 392 states that Section 395.10 takes effect immediately “[i]n order to serve the families of those troops currently serving in military conflicts in Iraq and Afghanistan, and to assure that these families are able to spend time together during the qualified member’s leave from deployment.”

With the addition of this new statute, California law now provides for more than 15 statutory leave-of-absence rights of various durations with which private employers of various sizes must comply.

You can read more about this new law here.

PS

UCLA Postdoc Fellow Program

Katherine Stone writes to inform us that the UCLA Institute for Research for Labor and Employment is now accepting applications for its 2008-09 Postdoctoral Fellow Program:

The IRLE Postdoctoral Fellowship Program is designed to support a new generation of scholars engaged in research on issues of labor and employment.  The program offers a unique opportunity for young scholars – both J.D. and Ph.D. recipients – to pursue research on labor and employment in an interdisciplinary setting.   We will select two Postdoctoral Fellows for the 2008-09 academic year.

IRLE Postdoctoral Fellows will be selected on a competitive basis and awarded an annual stipend of $52,000 (plus benefits) together with $3,000 for research expenses.  Fellows will be expected to teach a one-quarter undergraduate course while in residence and to participate in IRLE colloquia and other public programs during the fellowship year.   

Applicants must have earned a J.D. or Ph.D. degree from an accredited university between January 1, 2004 and June 30, 2008 to be considered for the 2008-09 fellowship year.   Applications must be received by January 11, 2008.  The final selection will be announced in April 2008.

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Immigration, Unions, and Slaughterhouses

Steven Greenhouse has a new article in the New York Times on the effect of the government's recent crackdown on illegal workers has had on slaughterhouses.  Greenhouse discusses several important issues, but I wanted to highlight unions' role in such situations.  Looking primarily to Smithfield in N.C., Greenhouse describes the employers attempt to replace Latino workers with Americans and the effect on union organizing:

The immigration arrests have also created problems for the union, the United Food and Commercial Workers Union which has spent 15 years seeking to organize the plant. “A lot of the people who left or were detained were strong union supporters,” said Gabriel Lopez Rivera, a Smithfield worker. Mr. Bruskin, the union official, added, “It’s extremely difficult for workers to stand up for their rights when they’re threatened with arrest or deportation.”

The Tar Heel workers voted against unionizing in 1994 and 1997, but the National Labor Relations Board ruled that Smithfield had broken the law by intimidating and firing union supporters. The company has called for a new election, but the union instead wants Smithfield to accept unionization through a majority sign-up, a process that would give management less opportunity to pressure workers.

In recent months, union organizers have adopted a new role, rushing to the trailers of immigrant workers facing arrest to ensure that someone can care for their children. Union officials recently organized educational forums at a Roman Catholic church in Red Springs, where immigrant workers were advised, among other things, to sign power of attorney forms designating someone to take care of their children, finances and homes if they were arrested.

“I think all this turmoil is helping unionization,” said the Rev. Carlos Arce, the priest there, “because people feel alone and unprotected, and they see that the union, along with the Catholic Church, is the only organization that is trying to help them.”

It's sad that workers are facing such dire circumstances, but it does open the door for unions to show their value.  The Administration's new match-letter policy has just recently been stopped via a preliminary injunction, but this problem is not going away anytime soon.  Expect unions, who have only recently viewed immigrant workers as possible allies, to continue to rise to the occasion, if for no other reason than these workers represent possible future union members.

-JH

Starbucks Settlement

Starbucks’ recent workplace troubles have been the subject of several posts recently (see here, here, and here). In a bit of good news, BNA’s Daily Labor Report (subscription required) is reporting that Starbucks has settled charges filed with the NLRB by the Starbucks Workers Union. The Regional Office found merit to the union’s allegations that Starbucks began enforcing a dormant rule against using a bulletin board and that managers interrogated and threatened employees. According to the DLR:

The settlement agreement requires Starbucks to post a notice at the Grand Rapids store for 60 days. In the notice to employees, Starbucks states that federal labor law gives employees the right to form, join, or assist a union, choose a bargaining representative, act together with other employees for benefit and protection, and choose not to engage in any of these protected activities.

In the notice, Starbucks pledges that it will not limit employee use of the break area bulletin board more strictly because of employees' activities with SWU or another union. The employer also said it will not interrogate employees about union activities or restrain, coerce, or interfere with employee rights under Section 7 of the NLRA. The notice said the employer will not restrict employees' right to distribute literature or wear pins or buttons that advocate union membership and that Starbucks will notify employees about changes in the employee handbook made in October 2006.

Anyone experienced in Board law recognizes this as a typical cease and desist order and notice posting. It’s not really much of a remedy, but it’s pretty much all that the Board could have achieved had it been litigated. Given the number of employers that are willing to shell out tens of thousands of dollars to avoid even this limited of an order, its heartening (in a low-expectations kind of way) to see an employer that is willing to settle such a case and at least say that its respect “the free choice of our partners.” Whether they really believe it is a different story, but I’ll take this as a small victory for Starbucks employees.

-JH

Duff on Implications of the Treatment of Immigration Rallies Under the National Labor Relations Act

Michael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Denver University Law Review: Days Without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies Under the National Labor Relations Act.

Here's the abstract:

The massive immigration rallies of early 2006 were prompted by anticipated congressional action classifying all unauthorized workers as felons subject to immediate deportation. While a product of federal immigration policy, the rallies implicate federal labor law because they could be characterized as concerted employee action resulting in a series of work stoppages.
Some employees were discharged for missing work to attend the rallies, so an initial question is whether participation in the rallies is protected activity under the National Labor Relations Act. But even assuming the rallies were attended by unauthorized workers, those workers are undeniably employees within the meaning of the NLRA. There are rich issues extending beyond the prima facie protection of employee participation in the rallies, however. Traditionally, employees “intermittently” engaging in concerted work stoppages could lose whatever protection they enjoyed under the NLRA. It might be argued that repetitive immigration rallies could similarly strip employees of protection. It is also possible to characterize rallies resulting in work stoppages as unlawful “secondary activity,” if the rallies are sponsored by labor organizations and “enmesh” neutral employers.

The significance of the rallies being classified as NLRA-cognizable conduct goes beyond the entitlement of individual employees to remedies for discharge or of employers for injunctions to suspend or forbid the rallies. There are systemic considerations at play deriving from deep tensions between the immigration and labor law regimes. Federal labor law could in some instances protect participation in immigration rallies and in other instances prohibit the rallies as unlawful. The article argues that when addressing these issues legal actors should not abandon the labor law model, designed as it is to carefully regulate mass, work-related protest potentially injurious to the national economy, for a risky and untested amalgam of federal and state immigration law enforcement. The conflicts with federal labor law generated thereby could and should be avoided.

This article is a timely analysis of an under-explored area of labor and immigration law. Check it out.

PS

From the Celebrity and HIPAA Don't Mix File

Hospital employees beware. Do not try to sneak a peek of medical files of the next famous person who comes to your place of work:

More than two dozen employees at Palisades Medical Center have been suspended after accessing the personal medical records of actor George Clooney, who was taken to the North Bergen, N.J., hospital last month after a motorcycle accident.

Clooney was injured, along with his companion Sarah Larson, when the motorcycle they were riding collided with a car in Weehawken, N.J. Clooney suffered a broken rib and skin abrasions and Larson broke her foot.

Hospital spokesman Eurice Rojas said late Tuesday that 27 employees were suspended for a month without pay, after an internal investigation. Accessing a person's medical records without authorization is a violation of the Health Insurance Portability and Accountability Act (HIPAA) -- a federal law that protects the privacy of patients.

Twenety-seven employees? Wow, I hope there was at least something juicy in there to be worth a month of pay.

PS

Secunda Cited by NYT on Odell Thurman's Disability Charge

The New York Times today cites our own Paul Secunda (not pictured at left) on a disability discrimination charge brought by linebacker Odell Thurman (pictured at left).  Thurman is supposed to be helping the Cincinnati Bengals crawl out of the cellar.  However, the N.F.L. suspended Thurman for a year after he was arrested for D.U.I., then extended that suspension for an additional year, apparently believing that Thurman has not successfully completed alcohol rehabilitation.  (After the suspension was extended, Thurman was arrested for violating parole by failing to meet with his parole officer.) 

Thurman has filed an EEOC charge arguing that his suspension constitutes disability discrimination because the NFL regards him as an alcoholic.  Sayeth Paul:

"The crux of the complaint is that they have a disability and they are not being reinstated because of that disability,” said Paul M. Secunda, a labor and employment law expert who edits the Workplace Prof Blog. “What we’re talking about is the disability of the player and the rights of the employer to run the N.F.L. as they see fit. It’s, where does the D.U.I. fit it? Does the league have the right to take further action beyond what the criminal court system does?"

"Potentially, these situations are boundless as far as athletes getting in trouble with alcohol- and drug-related cases. It’s the larger debate in society. At what point do people have to take responsibility for their own actions?"

For the entire story, see Judy Battista, Suspended Player Fights N.F.L. Ban.

Dustin Riddle and I recently posted on SSRN a closely related article, Disability Claims for Alcohol-Related Misconduct.  Our article examines what courts do when employees engage in on-the-job alcohol-related misconduct that the employees claim resulted from the disability of alcoholism.  Thurman's case is a bit different, as he appears to be arguing not that he is an alcoholic, but that the N.F.L. regards him as an alcoholic, and his DUI arguably is off-duty misconduct. I assume, however, that the N.F.L. will argue that it suspended Thurman (and then extended that suspension) not because the League regarded him as being an alcoholic, but because of Thurman's DUI arrest and his propensity to engage in further misconduct (based, presumably, on what the League apparently believes is Thurman's failure to successfully complete alcohol rehabilitation).

Riddle and I argue that an employer's duty to reasonably accommodate an employee arises when an employer suspects that an employee's conduct is alcohol-related, but that the employer should be permitted to give the employee a “firm choice” between rehabilitative treatment and termination.  I don't know how our proposed standard would affect Thurman because I don't know enough about the facts regarding his rehabilitation treatment.

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The Memoirs of Benjamin Aaron

The UCLA Institute for Research on Labor and Employment announces the forthcoming publication of "A Life in Labor Law: The Memoirs of Benjamin Aaron."

Kathy Stone (UCLA) writes:

A Life in Labor Law presents a remarkably readable and vibrant firsthand account of key events in labor relations in the second half of the twentieth century-from the War Labor Board, to the drafting of Japan's labor laws during the U.S. occupation, to the development of California's enforcement of international labor standards through the Internal Labour Organization.  Aaron writes with insight, humor, and humility.  He makes readers feel they are in the room beside him as he mediates the 1970 Los Angeles Teachers' Strike, debates ethical issues inside the National Academy of Arbitrators, or campaigns to get the United States to ratify the ILO's conventions on human rights.  More than a simple memoir, this book, with its graceful style and harmonious blend of idealism and realism, illuminates the history of the twentieth-century labor policy in the United States.

I very much look forward to reading Ben's memoir. You can order a copy of the book here.

Hat Tip:  Dennis Nolan

PS

NLRB Allows Employers to Enjoy Fruit from Their Poisonous Tree

Another day, another couple of 3-2 decisions limiting employees' ability to enforce their rights under the NLRA.  The first is Anheuser-Busch Inc., 351 N.L.R.B. No. 40 (Sept. 29, 2007), which involved an employer’s unlawful surveillance of its employees (unlawful because they did not bargain over it). That surveillance turned up activity, including drug use, that resulted in termination and discipline for certain workers. The Board had earlier refused to provide make-whole relief to the employees. The D.C. Circuit reversed because the Board failed to justify its move away from earlier precedent and remanded the case, leaving the possibility open that the Board could come to the same conclusion. It now has, based in large part on its interpretation of Section 10(c):

 Section 10(c) [] prohibits a make-whole remedy where discipline is “for cause.”  In its initial decision in this case, the Board cited Section 10(c) as support for its denial of a make-whole remedy.  However, as the [D.C. Circuit] observed, Section 10(c) does not “expressly address” the circumstances in the instant case – that is, “where an employer would not have discovered its employees’ misconduct but-for its own unlawful action.” The court was not persuaded by the Board’s reliance on Section 10(c).  We now articulate the rationale that the court found missing in our earlier decision. . . .

 

Under Weingarten, an employer violates the Act if it conducts an investigatory interview after denying the interviewed employee’s request for the assistance of a union representative. Notwithstanding that fact, both the Board and reviewing courts consistently have held that Section 10(c) precludes the Board from granting a make-whole remedy to employees disciplined for misconduct uncovered through an unlawfully-conducted investigatory interview.  See Taracorp Industries. . . .

 

We recognize that the Board, in its initial decision herein, cited Taracorp in support of its denial of a make-whole remedy, and that the court distinguished Taracorp on the basis that the employer in that case had a separate and untainted source of information regarding the employee’s misconduct. The dissent contends that Taracorp and other Weingarten cases are distinguishable from the instant case because in those cases, the employer suspected the employee’s misconduct prior to conducting the disciplinary interview.  However, the Taracorp Board’s holding did not turn on the presence of an untainted source. Indeed, the Taracorp decision does not even refer to the untainted information source, and instead relies heavily on Section 10(c)’s prohibition against making whole employees who have been discharged for cause.

The dissent responds:

 

Today, the majority overrules Board precedent and holds that an employer that disciplines employees based solely on information obtained in violation of Section 8(a)(5) need not make those employees whole.  The majority reaches that conclusion by: (1) relying on a reading of Section 10(c) that a reviewing court has rejected as a matter of law, (2) advancing policy arguments at odds with the Act, and (3) relying on a line of cases that has no appropriate application here.  We dissent. The employees here, whom the Respondent disciplined based solely on its unquestionably unlawful use of hidden surveillance cameras, are entitled to make-whole relief. . . .

 

It is well settled that the Board’s authority under Section 10(c) is broad and discretionary.  In exercising its authority, the Board is guided by the principle that remedial orders should “restor[e] the situation, as nearly as possible, to that which would have obtained but for [the unfair labor practice].” Die Supply Corp. “Effective redress for a statutory wrong should both compensate the party wronged and withhold from the wrongdoer the ‘fruits of its violations.’” International Union of Electrical Radio and Machine Workers v. NLRB. . . .

 

Even if the [D.C. Circuit] had not already rejected the argument that Section 10(c) bars a make-whole remedy, the majority’s 10(c) argument would not withstand scrutiny. The majority contends that the legislative history of Section 10(c) shows an intent to insure that employees who engaged in misconduct would be subject to discipline for it.  That is true, insofar as it involves 8(a)(1) and (3) cases in which the Board must determine whether an employee was disciplined because of Section 7 activity. But the legislative history gives no indication that it was intended to preclude make-whole relief in the circumstances present here, where the discipline was the direct result of a 8(a)(5) violation without which the employer would have had no grounds for discipline.

 Just to reiterate: this is not like the Title VII after-acquired evidence situation (Nashville Banner) where an employer commits an unlawful adverse employment action then later, by lawful means, finds evidence justifying discharge. Rather, this case is allowing an employer to violate the NLRA and use any evidence obtained during that unlawful action to preclude relief. It provides further encouragement for employers to engage in unlawful surveillance activity, as there is now a potential pay-off in digging up evidence that would warrant disciplining or terminating employees they wanted to punish. Admittedly, the employees’ conduct here was bad. However, the employer could have easily avoided the initial ULP and investigate suspicions of drug use by simply talking to the union. Moreover, this case could get into trouble before the D.C. Circuit, as the majority’s treatment of Taracorp. appears to conflict with the D.C. Circuit’s earlier holding. We’ll see what happens on appeal.

 

-JH

NLRB Reverses Backpay Burden

The NLRB, in a 3-2 decision, has reversed decades of precedent by shifting the burden in certain instances during backpay hearings.  The case is St. George's Warehouse, 351 N.L.R.B. No. 42 (Sept. 29, 2007) [in case you're wondering about the fact that September 29 has been the date for a lot of cases being announced weeks later, that date is the final work day of the previous fiscal year; for an agency that has faced much criticism about delays, having a large number of cases included in that fiscal year is helpful], in which the employer had been found to have violated the NLRA by firing two employees due to their union activity.  In the compliance hearing, the employer challenged the Board's backpay specifications, arguing that evidence of job openings in the area showed that the employees did not properly mitigate.  For the 45-plus years, the employer would have the burden of showing that the employees did not make reasonable attempts to find new work, but no longer.  According to the Board:

The contention that a discriminatee has failed to make a reasonable search for work generally has two elements: (1) there were substantially equivalent jobs within the relevant geographic area, and (2) the discriminatee unreasonably failed to apply for these jobs.  Current Board law places on the respondent-employer the burden of production or going forward with evidence as to both elements of the defense.  As to the first element, we reaffirm that the respondent-employer has the burden of going forward with the evidence.  However, as to the second element, the burden of going forward with the evidence is properly on the discriminatee and the General Counsel who advocates on his behalf to show that the discriminatee took reasonable steps to seek those jobs.  They are in the best position to know of the discriminatee’s search or his reasons for not searching. Thus, following the principle that the burden of going forward should be placed on the party who is the more likely repository of the evidence, we place this burden on the discriminatee and the General Counsel. . . . [T]his burden allocation relieves a respondent of the impractical burden of proving a negative fact. Further, this burden-shifting framework is also consistent with the obligations already imposed on the General Counsel by the NLRB’s Casehandling Manual [requiring the General Counsel to investigate the discrimantee’s job-search efforts].

 

Today, we modify the principles governing the issue of willful loss of earnings in one respect only. When a respondent raises a job search defense to its backpay liability and produces evidence that there were substantially equivalent jobs in the relevant geographic area available for the discriminatee during the backpay period, we will place on the General Counsel the burden of producing evidence concerning the discriminatee’s job search. 

 Not surprisingly, the dissent has a different view:

Departing from more than 45 years of established precedent, the majority relieves wrongdoers of their burden to produce all of the facts to substantiate the affirmative defense that a discriminatee unreasonably failed to mitigate damages and, instead, requires the General Counsel to produce facts to negate it.  The result is to place a stumbling block before discriminatees and, ultimately, to frustrate enforcement of the National Labor Relations Act. Unfortunately, this is just the latest in a series of cases in which the majority has sought to reduce the effectiveness of the Board’s backpay and reinstatement remedies.  The result, of course, is to make it less costly for an employer to violate the Act. . . .

[T]he Board’s [previous] requirement that a respondent come forward with facts to substantiate affirmative defenses to backpay, including an alleged failure to mitigate, is consistent with the general rule that a party asserting an affirmative defense has the burden of producing evidence to support it.  . . . The Board’s approach is also consistent with the Supreme Court’s oft-quoted observation that the “most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.”  Bigelow v. RKO Radio Pictures. . . .

There are good reasons to question the presumption that the General Counsel will be fully informed of a discriminatee’s mitigation efforts and location.  As explained above, the General Counsel is not the discriminatee’s lawyer, and the Board’s regional offices necessarily depend on the discriminatee’s cooperation in reporting efforts to find interim employment.  Moreover, although discriminatees are requested to periodically complete forms regarding their mitigation efforts, those forms rarely offer complete information.  . . . In any event, the majority’s presumption utterly ignores the fact that a respondent is often just as likely, if not more likely, to have access to a discriminatee.

It will come as now surprise (especially given that I worked briefly on getting the ULP in this case enforced in the Third Circuit), that I think the dissent has the better argument. The remedies under the NLRA are weak even at their strongest. It is telling that the majority is willing to impose further remedial hurdles for workers already identified as victims of unlawful discrimination. The hostility that the current Board majority has shown to collective rights under the NLRA hasn’t been seen since the Reagan-era Dodson Board. One can only hope that their days are numbered.

-JH

 

Weiss on Transgender Workplace Diversity

Jillian Weiss has published: Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals.

This book is a step-by-step "how-to" for corporate and legal professionals on transgender issues in the workplace.

It is targeted to the needs of employers who are facing transgender issues and want an accessible resource for creating transgender-friendly policies, training management and co-workers, and providing effective communications with clients and customers working with transgender employees.   It provides organizational leaders with a roadmap and detailed explanations.  It is also useful for transgender employees who want to get their employers on the right track with authoritative information targeted to the modern workplace.   

Jillian has 20 years of experience in the corporate world. Currently Associate Professor of Law and Society at Ramapo College of New Jersey, she has conducted research involving hundreds of companies and public agencies that have adopted "gender identity" policies. She publishes a popular blog on the subject of Transgender Workplace Diversity, http://transworkplace.blogspot.com.

If you are interested in reviewing the book for your publication, contact Dr. Jillian T. Weiss at jtwassociates@gmail.com for a review copy by mail or online ebook.

PS

UAW Strikes Chrysler

Update:   And as quickly as it started, it ended. (PS)

As Paul reported a few days ago, the UAW had been preparing to strike against Chrysler.  According to the NY Times, the strike has begun:

The United Auto Workers union walked off the job at Chrysler LLC this morning after the two sides failed to reach agreement on a new four-year contract by a union-set deadline. The strike by about 48,000 workers at Chrysler’s American plants is the second in two weeks by the union against a Detroit automaker. Workers at General Motors struck for two days before the union reached a tentative deal with G.M. on Sept. 26. G.M. workers are set to finish voting on their agreement today. Although some local unions have rejected the contract, it is expected to be approved.

Workers at Chrysler began leaving plants shortly before 11 a.m. Eastern time, a deadline set by the union over the weekend when talks moved slowly. There has not been a major strike at Chrysler since 1985, when 80,000 workers in the United States and Canada walked off the job for a total of 12 days.

But Chrysler, bought by a private equity firm two months ago, apparently balked at the union’s demand that it agree to similar contract terms, a concept known as pattern bargaining. In particular, Chrysler was reluctant to make a commitment to the number of new products would be built in American plants, and to guarantee how many jobs would remain at the company, which is in the midst of a restructuring program. Chrysler officials are said to be seeking flexibility to import vehicles from outside the United States, so they can take advantage of cheaper labor costs.

Chrysler apparently has a strong inventory of vehicles which, in combination with the changes sought by the new equity firm-owner, may mean that this strike will last longer than the one at GM.  The UAW has a strong history of successful pattern bargaining, so it will be interesting to see what happens.  The UAW may be willing to compromise on certain demands; however, if Chrysler stands firm on importing more vehicles, this strike could last a while.

-JH

Employee Psychological Testing and the Wisconsin Police Shooting

In the wake of the tragedy in Wisconsin surrounding the mass murder by a policy deputy of a number of his friends, it has come to light the perpetrator was not psychologically tested:

A young sheriff's deputy who opened fire on a pizza party and killed six people reportedly flew into a rage when he was rebuffed by his old girlfriend, and others at the gathering called him a "worthless pig. . . . .

The rampage raised questions in the remote northern Wisconsin community of 2,000 about how Peterson could have met requirements to become a law enforcement officer, especially after police acknowledged Monday that Peterson received no psychological screening before he was hired . . . .

Dr. Phil Trompetter, a police psychologist in Modesto, Calif., estimated at least 80 percent of
states require psychological testing of prospective officers.

"Wisconsin must be in a very small minority of states," he said.

The Wisconsin Department of Justice Law Enforcement Standards Board requires only that applicants be free of any emotional or mental condition that might hinder them in their duties. It does not say how that is determined.

Psychological testing is a tricky topic fraught with dangers of suits for employers for negligent hiring, defamation, and invasion of privacy.  But it seems that where the worker is one who will be carrying a firearm as part of his duties, it is negligent not to conduct some testing to make sure there is no obvious violent propensities.

You can't speculate what would have happened had this police deputy gone through testing, maybe nothing.  But it seems that such testing should have at least been required by the state.

Hat Tip:  Brian Harris

PS

Clinton Advances 401(k) Matching Plan

Senator Hillary Clinton has put forward a new pension proposal to get American workers to save more money for retirement:

Every citizen could get a 401(k) retirement account and up to $1,000 in annual matching funds from the government under a plan offered Tuesday by Democratic presidential candidate Hillary Rodham Clinton.

At a cost of $20 billion-$25 billion a year, the plan is Clinton's largest domestic proposal other than her plan for universal health insurance. The New York senator said it would be paid for by taxing estates worth more than $7 million per couple and would help narrow the gap between the rich and those who don't have enough savings for retirement.

Interesting idea that seems to promote retirement savings, but the question is whether these plans would suffer from the leakage - in the form of plan loans, etc. - that current 401(k) plans suffer from.

Hat Tip: Debra Davis

PS

Welcome to new ADR Blog - Indisputably

Four law professors (Andrea Schneider from Marquette, Sarah Cole from Ohio State, Nancy Welch from Penn State, and Michael Moffitt from Oregon) recently launched an ADR-focused blog called Indisputably.

A member of our Law Professors Blog Network, Indisputably intends to provide useful, timely, and insightful commentary about developments in the ADR field. It will comment on the individual dispute resolution processes, latest law review articles and relevant books, interesting empirical research, as well as the various ways ADR is used every day in this country and around the world.

Welcome aboard, everyone and readers, check them out!

PS