November 10, 2007
Wage Justice Center
fights for greater economic equality in California and social justice in the increasingly integrated global economy. We provide a systematic solution to enforce the basic economic rights of California's workers and to collect unpaid wages from employers who have previously escaped consequences for illegally underpaying their employees. By developing new strategies to enforce wage rights and educate workers, advocates, and the public, The Wage Justice Center compels employers to redistribute the capital obtained by violating workers’ rights laws. The Wage Justice Center's unique approach of enforcing judgments and creating a permanent enforcement mechanism for wage rights is part of the growing national movement of organizations that combat the systemic inequality facing America’s poorest workers.
Insular Individualsim as a Title VII Screen
Tristin Green (Seton Hall) has just posted on SSRN her new essay (forthcoming 2008 Harv. Civ.Rts.-Civ. Lib. L. Rev.) Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear. Here's an excerpted abstract of this important new article:
When Ledbetter v. Goodyear Tire and Rubber Co. was decided by the Supreme Court in late-May of this year, commentators - both legal and nonlegal - immediately recognized the obstacle that the decision poses for individuals suffering from discrimination in pay .... What the efforts to mitigate the immediate effects of Ledbetter miss, however, is that Ledbetter is part of a much deeper and more potentially devastating conceptual shift that is taking hold in employment discrimination law. This "insular individualism" - the belief that discrimination can be reduced to the action of an individual decisionmaker (or decisionmakers) isolated from the work environment and the employer - renders the narrow legislative attempts to overrule Ledbetter woefully incomplete. Without adequate challenge, the entrenchment of insular individualism that Ledbetter reflects is likely to have significant repercussions for the future of employment discrimination law.
In this Essay, I seek to uncover the insular individualism in Ledbetter and to map some of its potential consequences for antidiscrimination law. I argue that Ledbetter - and the insular individualism that it reflects - is likely to lead to at least two significant changes in individual disparate treatment law: (1) a narrowing of the evidence plaintiffs alleging individual disparate treatment are permitted to use to make their case; and (2) a cutting back on employer vicarious liability, both by providing exceptions to employer liability for what are seen as errant or rogue discriminating employees, and, as in the area of sexual harassment, by requiring victims of discrimination to complain to their employers about discrimination early on, even when the discrimination is not yet legally actionable. Although these changes are on the immediate horizon (within the next year, the Court will hear arguments in a case raising the first opportunity for such a change, and other opportunities are likely to follow shortly), they are not inevitable. After mapping some of the likely effects of insular individualism, I propose several ways in which those who understand insular individualism can work to weaken its influence.
Top-5 International Employment & Labor Law SSRN Downloads
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (63).
- Virginia Mantouvalou, Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (41).
- David J. Doorey, The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (37).
- Lea S. Vandervelde, The Thirteenth Amendment of Our Aspirations (31).
- Maria Linda Ontiveros (photo above), Immigrant Workers and the Thirteenth Amendment (30).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- William F. Sharpe, Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (146).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 1 (100).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 2 (88).
- John H. Langbein (photo above), Why Did Trust Law Become Statute Law in the United States? (86).
- Paul Fronstin & Dallas L. Salisbury, Health Insurance and Taxes: Can Changing the Tax Treatment of Health Insurance Fix Our Health Care System? (55).
November 9, 2007
9th Cir.: Congress Did Not Validly Abrogate Sovereign Immunity for GERA Claims
In Alaska v. EEOC, 07-70174 (9th Cir. Nov. 8, 2007), the Ninth Circuit took on a fairly obscure issue of whether Congress validly abrogated the sovereign immunity of Alaska under the 11th Amendment in passing the Government Employee Rights Act of 1991 (GERA).
Ross Runkel takes the story from there:
The Equal Employment Opportunity Act of 1972 subjected state and local governments to Title VII liability. However, the Act excluded from protection elected officers and "any person chosen by such officer to be on such officer's personal staff" and employees "on the policymaking level" or serving the official as "an immediate adviser with respect to the exercise of the constitutional or legal powers of the office." 42 USC Section 2000e(f). In 1991, the Equal Employment Opportunity Act of 1972 was amended by the Government Employee Rights Act (GERA). GERA wiped out the exemption as to members of an elected official's personal staff, those serving the official on a policymaking level, and those serving as immediate advisers.
The court concluded that Congress did not validly abrogate the states' 11th Amendment immunity when it passed GERA (at least as to the level of employee at issue in this case). The court noted that "GERA was enacted with no findings by Congress as to state practices of discrimination against employees at this level of government." The court noted additionally, "[i]t would be guesswork ... to suppose that a widespread pattern of intentional discrimination on account of gender or race existed among the fifty governors of the states as they selected staff assisting them in the exercise of their office." Accordingly, the court concluded "[w]e do not believe that GERA is a proportionate response to a widespread evil identified as the predicate of this legislation."
I am no big fan of the Rehnquist Court's interpretation of sovereign immunity under the 11th Amendment and the Congress' power to abrogate that immunity under Section 5 of the Fourteenth Amendment and so it is not that surprising that I tend to agree with the dissenting judge here that there was a valid abrogation:
As the Supreme Court explained in 1976 in Fitzpatrick v. Bitzer, Title VII of the Civil Rights Act of 1964 expressly excluded the States from its purview. 427 U.S. 445, 448-49 & n.2. The 1972 amendments to Title VII,2 however, “made clear that [Title VII] was being extended to persons aggrieved by public employers.” Id. at n.2. With regard to the States, the 1972 amendments extended Title VII’s protections to “employees subject to the civil service laws of a State government, governmental agency or political subdivision.” 42 U.S.C. § 2000e(f) . . . .
Fitzpatrick therefore concluded that “congressional authorization to sue the State as employer” and “abrogate the immunity conferred by the Eleventh Amendment” was “clearly present” in the 1972 amendments . . . .
Because the 1991 Act and GERA effectively amended Title VII and extended its protections to certain previously excluded state employees, Congress, in my view, must have intended GERA to incorporate the 1972 amendments’ express inclusion of state employers as possible respondents to private Title VII claims for damages and the Supreme Court’s 1976 holding that the 1972 amendments therefore validly abrogated the States’ Eleventh Amendment immunity.
The case produced three different opinions on a highly-splintered court. I don't suspect this is the last we have heard about this case or the issues under GERA it raises.
House Passes WARN/COBRA Expansion
We are a little late on this one, but on October 31st, the House passed (by a non-veto proof majority) the Trade and Globalization Assistance Act (H.R. 3920). The bill was approved by a vote of 264-157 vote and would amend the WARN Act (see two posts below) to require 90 days of notice to workers (instead of the current 60 days) of impending job losses due to plant closings and mass layoffs as the result of globalization.
The bill would also extend benefits to service industry and public-sector
employees who lose their jobs due to trade or offshoring of jobs. Additionally,
the bill would give impacted employees more time to receive continuation of
their health care coverage under COBRA.
The bill seeks to improve upon the the Trade Adjustment Assistance (TAA) Reform Act of 2002. The TAA program assists individuals who have become unemployed as a result of
increased imports or shifts in production to foreign countries. TAA-certified
workers may access a menu of services that include training, income support,
relocation allowances, job search allowances, and a health insurance coverage
I am not sure of the exact reasons, but the President has expressed objections to the 2007 bill. It is unclear when, or if, the Senate will take up the measure.
6th Cir.: New FLSA Regulations Don't Follow 50% Rule of Thumb for Exemption Determinations
Well, here is a recent case from the Sixth Circuit which points out that the
recently-enacted FLSA regulations do not follow the old rule of thumb for
white-collar exemptions that at least 50% of an employee's work must be in
exempt activities. Instead, the employee's primary duty under the job
duties test is dependent on a more totality of the circumstances analysis.
Thus, in Thomas v Speedway SuperAmerica LLC (6th Cir. Oct. 30, 2007), the Sixth Circuit applied these new regulations and found that an employee who spent 60% of her time on non-managerial activities could still nevertheless qualify for the executive employee exemption from the FLSA. Thus, the employer did not owe the employee back overtime.
Hat Tip: CCH Workweek
4th Cir.: No WARN Act Violation Where Pay Substituted for Notice
Under the Workplace Adjustment and Retraining Notification (WARN) Act, employers with 100
or more full-time employees must give 60 days notice when they engaged in a
qualified "mass layoff" or "plant closing." Although
60 days notice must be given, any period of the statutorily-required notice
period may be substituted by providing severance benefits in lieu of notice.
In Long v Dunlop Sports Group Americas, Inc. , (4th Cir. Oct. 29, 2007), the Fourth Circuit considered a case in which the employer failed to give employees 60 days' advance notice of a plant shutdown, but continued to pay full wages and benefits to most workers for 60 days after the shutdown. Consistent with WARN law, this payment of severance in lieu of notice satisfied the WARN Act.
More technically, the employees did not suffer an "employment loss" for purposes of the statute because the Act defines "employment loss" as employment termination, and an employee is not "terminated" if he continues to receive full wages and benefits.
Hat Tip: CCH Workweek
Humans Are Physiologically Predisposed Toward Optimism. Lawyers Aren't.
Robert Lee Hotz describes in this morning's Wall Street Journal a series of recent studies indicating that the rostral anterior cingulate cortex of the human brain (top photo) creates a pervasive bias toward optimism, a finding that is supported by behavioral studies. NYU neuroscientist Elizabeth Phelps explains:
If even half the time our actions work out well, our life is going to turn out for the better. If you are pessimistic, you are unlikely to even try.
There is, however, one occupational exception to this bias toward optimism:
Surveying law students at the University of Virginia, [Penn neuroscientist Martin] Seligman found that pessimists got better grades, were more likely to make law review and, upon graduation, received better job offers. There was no scientific reason. "In law," he said, "pessimism is considered prudence."
For more, see Robert Lee Hotz, Except in One Career, Our Brains Seem Built for Optimism. The photos above are courtesy WSJ Online.
November 8, 2007
Reservists Increasingly Not Receiving Governmental Help to Return to Jobs
The Army Times is reporting that United States military reservists who have been increasingly called upon to serve their country during the recent wars in Iraq and Afghanistan are not getting government support in helping them to return to the work once their duty is over:
Strained by extended tours in Iraq, growing numbers of military reservists say the government is providing little help to troops who are denied their old jobs when they return home, Defense Department data shows.
The Pentagon survey of reservists in 2005-06, obtained by The Associated Press, details increasing discontent among returning troops in protecting their legal rights after taking leave from work to fight for their country.
It found that 44 percent of the reservists polled said they were dissatisfied with how the Labor Department handled their complaint of employment discrimination based on their military status, up from 27 percent from 2004.
Nearly one-third, or 29 percent, said they had difficulty getting the information they needed from government agencies charged with protecting their rights, while 77 percent reported they didn’t even bother trying to get assistance in part because they didn’t think it would make a difference . . . .
Under [USERRA], military personnel are protected from job discrimination based on their service and are generally entitled to a five-year cumulative leave with rights to their old jobs upon their return. Reservists typically file a complaint first with a Pentagon office, the Employer Support of the Guard and Reserve, which seeks to resolve the dispute informally.
If that effort fails, a person typically can go to the Labor Department to pursue a formal complaint and possible litigation by the Justice Department.
Perhaps this is the workplace equivalent of the Walter Reed debacle. Just like this country cannot forget those who serve their country once they are injured, it is also galling that those who volunteer for their country are not being protected from employment discrimination.
Hat Tip: Brian Harris
Schultz and Petterson on An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation
Vicki Schultz (Yale) and Stephen Petterson has posted on SSRN their forthcoming piece in the University of Chicago Law Review: Race, Gender, Work and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation.
Here's the abstract:
This Article is a follow-up study to Professor Schultz's classic Article, Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument (1990). We provide quantatitative and qualitative analyses of the universe of Title VII cases in which employers sought to defend allegations of race or sex discrimination by arguing that racial minorities or women lacked interest in the work at issue.
Several striking patterns emerge from the data. In race discrimination cases, the lower federal courts almost universally rejected the lack of interest defense before 1977, but after that judges began to accept the argument with some frequency - and more often than they did in sex discrimination cases. This change is not attributable to an increase in Republican judges. Both Republican and Democratic judges - and judges appointed by the most liberal Democratic Presidents - began to accept the lack of interest argument with some frequency after 1977. As other scholars have suggested, it appears that the late 1970s represented a turning point in antidiscrimination law: Our analysis suggests that the liberal consensus on race broke down, and the federal courts became more willing to accept neo-conservative explanations for racial segregation in employment.
In sex discrimination cases, by contrast, the courts' willingness to accept the lack of interest defense over time remained stable over time. Remarkably, however, courts treated the very same types of evidence differently in sex discrimination cases and race discrimination cases (at least when considered in the aggregate. For example, anecdotal evidence of discrimination significantly helped plaintiffs in sex discrimination cases, but not in race discrimination cases. Conversely, evidence of past discrimination by the employer helped plaintiffs in race discrimination cases, but not sex discrimination cases. These differences have become minimized after 1977, as the courts have begun to regard evidence produced by race discrimination plaintiffs with the same sort of skepticism with which they have historically regarded the evidence produced by sex discrimination plaintiffs.
I would be interested in hearing what impact, if any, Vicki believes the forthcoming Mendlesohn "Me Too" employment discrimination case might have on these empirical findings.
Hat Tip: Legal Theory Blog
November 7, 2007
The House Passes ENDA
On Wednesday, the House passed the Employment Nondiscrimination Act (ENDA) by a 235-184 margin. As we've posted earlier, the president has threaten to veto an earlier version of this bill, which adds sexual orientation to Title VII's list of protected characteristics, yet was stripped (before the veto threat) of its protection for transgendered employees due to pragmatic political reasons. The bill garnered 35 Republican votes, while 25 Democrats voted against it.
Sen. Kennedy intends to introduce the measure in the Senate shortly and reports are that a properly worded bill could get enough Republican backing to pass. However, the House vote was well short of the 2/3 majority needed to override a possible veto, so the Senate's actions may be not matter in the end.
Although ENDA is certainly a compromise measure that could be much stronger, I'm still of the belief that something is better than nothing. Of course, there still may be nothing if there's a veto, so stay tuned.
Harsh Words for the EEOC at the Supreme Court
Here is the transcript in the oral argument on Federal Express v. Holowecki (06-1322), which was argued yesterday before the U.S. Supreme Court.
It appears from the transcript that the Court is most annoyed with the EEOC in its inability to get its act together whether it comes to its regulations and forms dealing with charges of discrimination.
The AP reports the harsh words the Justices had for the administrative mess which is the EEOC:
The justices came down hard on the Equal Employment Opportunity Commission in a case that was argued Tuesday about whether an age discrimination lawsuit against FedEx Corp. can proceed.
At issue is whether the EEOC's failure to notify FedEx about a complaint filed by FedEx courier Patricia Kennedy and 13 other employees should lead to the dismissal of the lawsuit . . . .
Chief Justice John Roberts said he agreed that the law requires FedEx to be notified about a complaint before a lawsuit is filed so that the company can investigate and attempt to resolve it before lawyers and judges intervene.
"But I don't understand your leap from government incompetence to the plaintiff loses," Roberts told FedEx lawyer Connie Lensing.
Justice Antonin Scalia was even more pointed about the EEOC. "My main concern is to do something that will require the EEOC to get its act in order because this is nonsense," Scalia said.
Ouch! But it is not all the EEOC's fault. This is an agency that has been perpetually underfunded, especially during Republican administrations and has not been given the ability to carry out its statutory mandate in an efficient and effective manner.
I wouldn't be surprise to see the Court apply the doctrine of equitable tolling, from TWA v. Zipes, to allow the late filed charge here by the plaintiff since it was the government's fault that the defendant did not get notice of the charge.
I'm with Paul Mollica on this one and think, "[t]he Court appeared in no mood to punish an employee whose charge the EEOC failed to publish to the other side. As Chief Justice Roberts queried, 'Why should he suffer the categorical sanction of dismissal simply because it's a little unfairness to you?'"
Wearing a Digital Button
Trades Union Congress (TUC), a labor union in the UK, has developed a facebook application called My Union for union members. Members can add a trade union badge to their profile, and can see which unions their friends are members of. The application is currently available only for UK unions, but TUC expects to make it available to American unions in the near future. Hat tip: Work-Related Blogs and News.
At the Supreme Court
The Supreme Court today will hear oral arguments in Hall Street Associates v. Mattel, Inc., Nos. 05-35721 & 05-35906. At issue is whether parties can contractually alter the terms of judicial review in an arbitration agreement covered by the Federal Arbitration Act. I wrote on this issue awhile back -- see Maggio & Bales, Contracting Around the FAA: The Enforceability of Private Agreements to Expand Judicial Review of Arbitration Awards, 18 Ohio St. J. Disp. Resol. 151 (2002) (Westlaw subscription required) (arguing that the parties should be able to alter the terms of judicial review to a non-idiosyncratic judicial standard).
For an enlightening description of yesterday's oral arguments in Federal Express v. Holowecki, see Paul Mollica's Daily Developments in EEO Law. Prior to oral arguments, I would have guessed the Court would give deference to EEOC regs, but Paul doesn't think that'll happen.
November 6, 2007
Not So Easy for Staples
As Paul posted recently, the FLSA is increasingly a source of litigation. Now comes a reminder that state wage and hour laws may be important too--this time in a case against Staples. The office supply store has just signed off on a settlement for a whopping $38 million for state overtime claims brought by a group of managers. As noted in BNA's Daily Labor Report (subscription required), the managers argued that they were misclassified as executive employees exempt from the state's overtime provisions. The plaintiff's attorney, Matthew Righetti, "called the
settlement 'remarkable' and said it was among the largest ever in a
dispute over the state law's executive exemption." What's likely remarkable as well is his share of the settlement which, of course, is an important factor in the recent prominence of these cases. As long as payments like this still occur, don't expect a decrease in this trend any time soon.
Oral Argument in Holowecki Today
Today at 11 a.m. EDT, the U.S. Supreme Court will hear its first employment case of the term in Federal Express v. Holowecki (our previous coverage is here), a case concerning whether the filing of an EEOC intake questionnaire can satisfy the administrative exhaustion requirement under the Age Discrimination in Employment Act (ADEA). My friend and fellow blogger, Paul Mollica, of Daily Developments in EEO Law, has been involved with this case.
For my own part, I have written a short piece, with my research assistant McCann LeFeve, for the ABA's PREVIEW of United States Supreme Court Cases on Holowecki.
Another piece on the case has been written by Helen Norton (Colorado) over at the ACSBlog.
I hope to have analysis of the oral argument transcript either later today or tomorrow.
From the Front Lines of the Hollywood Writers Strike
My source writes:
You'd be getting a kick out of the action in this town today.
"Are you ready to fight? Damn right!"
"On strike, shut 'em down, Hollywood's a union town!"
The political dynamics out here right now are absolutely incredible. Teamsters are siding with [the Writer's Guild] WGA, [Screen Actor Guild] SAG's siding with WGA in principle (but only when it doesn't conflict with existing contracts), and [Director's Guild] DGA is as silent as possible. The people who seem most screwed are TV showrunners - weird executive hybrids that usually got their start as writers and still perform writing duties, but also "run" a television show as producer. Most of these are in the WGA, and it's ridiculously interesting to see which ones are going to work and performing "non-writing" duties and which ones are joining their fellow writers in the picket lines.
I got lucky today - didn't have to cross a line to get into my office. I've got to admit, it'd feel pretty awkward in that situation: I may not be a professional writer at this point in my life, but I've always been a writer. My love for the existing Hollywood architecture and my love for the craft of storytelling have finally hit an impasse. "Lucky" is a perfect word for someone like me at a time like this. I get to see where both sides take this one.
Wow. Interesting stuff. Stay tuned for more updates.
Court Strikes Arbitration Clause Limiting Discovery
[Y]ou and Capitol shall each have the right and obtain the following discovery, without permission from the Arbitrator:
• up to three (3) depositions;
• relevant documents from the other party;
• relevant documents from third parties pursuant to subpoena.
Additional discovery may be authorized by the Arbitrator, except that other forms of written discovery (i.e. interrogatories and requests for admission) must be mutually agreed to by you and Capitol. The Arbitrator shall refuse additional discovery if he or she determines that the requested information is privileged, irrelevant, duplicative, burdensome, or equally available to the requesting party.
The court held that this discovery provision was substantively unconscionable in two ways. First, the court held that the 3-deposition limit was unconscionable, even though the arbitrator had the authority to permit additional depositions, because the "plaintiff is initially limited in identifying or accessing people who work for the employer and may have took [sic] part in the employment decision." I'm not sure where the court found this restriction, because it's not in any part of the arbitration agreement that the court quoted. If this restriction was in the arbitration agreement, then the court was right to strike it, but if not, most courts would say that the arbitrator's ability to authorize additional discovery would make the presumptive 3-deposition-limit reasonable.
Second, the court held that the restrictions on interrogatories and requests for admission were substantively unconscionable because such “an important avenue of discovery is potentially unavailable to plaintiff and is not subject to review by a disinterested third party.” I agree with the court on this one -- courts tend to uphold arbitration agreements giving discretion over discovery to the arbitrator, but strike agreements imposing absolute restrictions.
Employment arbitration cases discussing discovery restrictions are few and far between, but because employers usually control access to the vast majority of information surrounding employment decisions, discovery restrictions can have a major impact on an employee's ability to prove her case.
The court severed the offending clauses and sent the case to arbitration. Here, I think, is the bigger problem: the employer has no incentive to re-draft its discovery provisions. Courts should impose a penalty on employers -- at the very least, striking the entire arbitration agreement and imposing fees and costs -- who draft lopsided arbitration agreements. Otherwise, employers have an incentive to draft lopsided agreements that scare employees away from enforcing their statutory employment rights.
The case is Hulett v. Capitol Auto Group, Inc. 2007 WL 3232283 (D. Or. Oct. 29, 2007).
ENDA Moves to House Floor
Workplace Horizons reports that the House Rules Committee voted 9-3 last night to send ENDA to the House floor. Amendments to be discussed on the floor would (1) make the ENDA religious exemption parallel to Title VII, (2) incorporate the definition of marriage in the Defense of Marriage Act, (3) remove the prohibition on employers conditioning employment on a person being married or being eligible to be married, and (4) extend ENDA protection to gender identity.