November 17, 2007
2008 AALS Section on Employment Discrimination Law Annual Newsletter
Scott Moss (Colorado), Secretary of the AALS Section of Employment Discrimination Law and Editor of the Newsletter, and his wonderful newsletter committee (Keith Cunningham-Parmeter (Willamette), Jarod Gonzalez (Texas Tech), Susan Harthill (Florida Coastal), and Emily Gold Waldman (Pace)), have put together a stupendous employment discrimination newsletter so overflowing with faculty news and information that it couldn't even fit on the listserv!
So, here it is in all of its glorious detail. Enjoy!
Chinese Labor Law
Sean Cooney (Melbourne) has just posted on SSRN his new article (forthcoming Fordham Int'l L.J.) Making Chinese Labor Law Work: The Prospects for Regulatory Innovation in the People's Republic of China. Here's the abstract:
This article examines the scope for progressive regulatory reform in China by examining a very significant social problem: the failure of businesses to pay wages to millions of workers. This widespread failure to pay employees for their labour has caused significant social unrest and threatens to undermine China's economic success. The article is the first systematic English-language analysis of how the Chinese legal system is responding to the problem.
While I point to many systematic current flaws in the legal framework and in the regulatory institutions charged with implementing it, I also find evidence of regulatory innovation. Governments at both national and local level are making surprisingly sophisticated attempts to remedy gaps in the legal norms pertaining to work contracts. They are also devising new methods of ensuring that workers receive their wages, beyond the 'command and control' approach characteristic of much of China's legal system. These developments demonstrate that there is some scope for positive legal change in a country where labor and environmental laws are frequently ineffective. I identify a range of further practical reforms that could improve compliance.
Top-5 International Employment & Labor Law SSRN Downloads
- Virginia Mantouvalou, Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (48).
- Maria Linda Ontiveros, Immigrant Workers and the Thirteenth Amendment (36).
- Katherine V.W. Stone (photo above), In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risks in the United States (32).
- Lea S. Vandervelde, The Thirteenth Amendment of Our Aspirations (31).
- Michael C. Duff, Days without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act (24).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- William F. Sharpe (photo above), Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (159).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 1 (105).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 2 (91).
- John H. Langbein, Why Did Trust Law Become Statute Law in the United States? (89).
- Paul Fronstin & Dallas L. Salisbury, Health Insurance and Taxes: Can Changing the Tax Treatment of Health Insurance Fix Our Health Care System? (55).
November 16, 2007
NLRB Oral Arguments in Lessee Handbilling Case
The NLRB recently heard oral arguments in New York New York Hotel LLC, d/b/a New York New York Hotel & Casino, No. 28-CA-14519. This case implicates one of the many complications involved with the tension between NLRA rights and employer property rights. Here, employees of two restaurants located inside the New York New York Hotel & Casino engaged in consumer handbilling in non-work areas, including the hotel entrance and outside the two restaurants (inside the hotel). The most basic question is the analysis that the Board should use. Typically, employees have much more leeway to use employer property than nonemployees (the Republic Aviation/Lechmere distinction)--as NYNY learned in an earlier case they lost after trying to prevent their own employees from handbilling. The complication here is that the employees at issue are not the employees of NYNY and it's not clear how NYNY's attempt to stop them should be analyzed. The BNA Daily Labor Report (subscription required) provides the background:
The board originally held in two decisions in July 2001 that the NYNY violated the NLRA by prohibiting the handbilling, which the board found occurred in nonwork areas. 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." NYNY 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 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 Supreme Court precedent does not answer the question.
This case raises numerous issues about the extent to which employers' property interests have been permitted to block employees' NLRA rights. Given the prevalence of employer-within-employer set-ups (think Starbucks), this is an increasingly prevalent problem. It also illustrates the complexity of the various attempts to weigh property rights and NLRA rights. This complexity--particularly the importance of state property law, which is important in the NYNY case as the Board attempts to evaluate lessor-lessee relationship--is the subject of one of my recent articles, Taking State Property Rights Out Of Federal Labor Law.
As we've reported recently (see here for a post on the AFL-CIO's ILO complaint), unions have been increasingly aggressive in publicly criticizing NLRB rulings over the past few years. In the latest volley, the AFL-CIO and Change to Win federation has found an enemy worth putting aside their differences for, as they arranged 20 anti-NLRB rallies across the country. As reported by BNA's Daily Labor Report (subscription required):
Hundreds of union members and leaders, as well as civil rights and religious leaders, Nov. 15 marched from AFL-CIO headquarters in Washington, D.C., to National Labor Relations Board headquarters several blocks away, protesting a flurry of late September NLRB rulings that the AFL-CIO says "stack the deck in favor of big business over working men and women." Addressing a rally at the AFL-CIO prior to the march, Fred Azcarate, director of the federation's Voice@Work campaign, said that 61 decisions issued by the board in what he called the "September Steamroll" made the "broken election system even worse."
According to the AFL-CIO, the 61 decisions issued at the end of the board's fiscal year overall make it harder for employees to form unions but easier for employers to get rid of existing unions. Additionally, the federation said, the decisions make it easier for employers to escape liability for breaking the law and weaken already ineffective remedies; make it easier for employers to discriminate against union supporters and replace strikers; and make it easier for employers to escape bargaining obligations. Azcarate also said that 33 of the 61 decisions had been pending at the NLRB for four or more years. "Justice delayed is justice denied," he said, adding, "It's time to shut the board down and close it for renovation" until there is a balanced NLRB.
NLRB Chairman Robert Battista issued a Nov. 15 statement criticizing the protesters for engaging in "shrill political rhetoric over reasoned debate. The demonstrations today were mostly about presidential politics in 2008." Battista said that if the groups that demonstrated "truly believe that our recent decisions are not consistent with the National Labor Relations Act" they are free to challenge the decisions in court, if they are a party, or assist in such a challenge if they are not a party. He added that he is confident that the decisions will be upheld by a court if they are challenged.
While Battista said he could not comment on the substance of any of the cases issued in September, he did note that the board found one or more violations of the NLRA by employers in the majority of the unfair labor practice cases issued that month.
The Washington, D.C., rally, which was attended by union members from both the AFL-CIO and the Change to Win federation, was one of more than 20 held around the country to protest the recent board decisions. Protest actions also took place at NLRB regional offices in cities including Nashville, Tenn.; St. Louis; Chicago; Los Angeles; Tampa, Fla.; Milwaukee; Phoenix; Denver; and Albuquerque, N.M. The AFL-CIO estimated the crowd of protestors in Washington at close to 1,000.
Battista is right about one thing--part of the unions' aim is to affect the 2008 election, so expect plenty more of this until at least then. Also, one quibble with Battista's response: it's completely nonresponsive to cite the fact that most ULP cases resulted in at least one violation by the employer. The vast majority of ULPs complaints are against employers and the unions are clearly objecting to major, precedent-setting (or precedent-changing) Board decisions, which will of course reduce the number of future complaints.
SEIU on Private Equity Firms
The Service Employees International Union (SEIU) has posted its thoughts about what the increase ownership of companies by private equities firms might mean for unions and employees:
Largely unknown outside the financial world, the private equity industry is reshaping the American economy. In the last year alone, private equity buyout firms have taken ownership of the nation’s largest office building landlord, Equity Office Properties, the largest hospital chain, HCA, and the world’s largest casino company, Harrah’s. And while the industry is not a new one, private equity firms’ acquisitions and influence are growing exponentially, raising newly relevant questions about the impact of its business practices on American workers, businesses, communities and the nation.
You can download the report here.
Price and Wolfers on Racial Discrimination Among NBA Referees
Here's the abstract:
The NBA provides an intriguing place to test for taste-based discrimination: referees and players are involved in repeated interactions in a high-pressure setting with referees making the type of split-second decisions that might allow implicit racial biases to manifest themselves. Moreover, the referees receive constant monitoring and feedback on their performance. (Commissioner Stern has claimed that NBA referees are the most ranked, rated, reviewed, statistically analyzed and mentored group of employees of any company in any place in the world.) The essentially arbitrary assignment of refereeing crews to basketball games, and the number of repeated interactions allow us to convincingly test for own-race preferences. We find - even conditioning on player and referee fixed effects (and specific game fixed effects) - that more personal fouls are called against players when they are officiated by an opposite-race refereeing crew than when officiated by an own-race crew. These biases are sufficiently large that we find appreciable differences in whether predominantly black teams are more likely to win or lose, based on the racial composition of the refereeing crew.
Interesting stuff. I wonder if the article controls for referees of any race given stars of any race (Kobe Bryant or Steve Nash) more leeway than your average rookie? I'm sure my buddy Mike McCann over at Sports Law Blog will have some comments on this implicit bias study.
November 15, 2007
Will Facebook and MySpace Change the Workplace?
Staying with the internet theme today, Sherry Read from Leadersip Solutions from Read Solutions points out that some say no:
Tom Davenport at Why Facebook and MySpace Won't Change The Workplace summarizes his position on Harvard Business Online with "In short, I’m still pulling for social networks to revolutionize companies, but I still don’t think that they will. The transformation of enterprises by Enterprise 2.0 is a romantic notion, but not a very likely one."
And some say yes:
Charlene Li in Why Your Company Needs to Be on Facebook takes the opposite view that business is about relationships, and so "Your customers, prospects, and employees are exploring and extending their relationships there. Some of you will be bolder in creating business value in these networks while others will wait for the pioneers to carve out the paths. But ignore these new communities only if you believe your customers are not there – and there are few instances where this will be the case."
Me? Well, Aristotle once said that the middling way is best and that means here that these social networking sites are bounds to have SOME impact, but the degree is likely to depend on the company culture (and how much time and energy is invested) and the employees and the third parties the company interacts with.
Is It Wrong to Google Prospective Employees?
So asks Kris Dunn at the HR Capitalist:
Talking to a VP of HR I know and respect last week. Topic of googling candidates to find out more about them came up. Guess what? My friend told me that he has instructed his recruiters not to google candidates as he feels it's an intrusion of privacy and a potential legal risk.
Guess what my response was?
Right - "You are C.R.A.Z.Y.! Have you lost your mind?"
After diving a layer deeper in the conversation, it turns out my friend had attended a conference where someone talking about legal risks of making rejection decisions based on what you find online.
November 14, 2007
General Counsel Meisburg Discusses NLRBU Dispute, Backpay to Undocumented Workers
Speaking before the ABA Section of Labor and Employment Law, NLRB General Counsel Meisburg discussed numerous issues currently facing his office. One issue that we've followed for some time (see here for the most recent installment) is his challenge to an FLRA decision allowing an NLRBU bargaining unit consisting of Board- and General Counsel-side employees. As reported by BNA's Daily Labor Report (subscription required), Meisburg stated that:
[H]is refusal to bargain "is the only way I could get judicial review" of the Federal Labor Relations Authority's June certification of the unit consolidating four previously separate units and that this is "the only time" he could seek judicial review. . . .
Although Meisburg and the current board members "coordinate well" in bargaining with NLRBU over the four separate units, "I cannot guarantee that in the future transient presidential appointees will share the same good will and common views regarding the best interests of the agency if we are required to bargain in a single bargaining unit." He asserted that he "cannot risk that some future board might seek to bargain in a single unit with the general counsel's employees in a way that undermines the enforcement efforts of the general counsel."
He's obviously correct that he has to refuse to bargain to challenge the decision, but that begs the question whether he should pursue the challenge. I'm still unconvinced that there is a real possibility of conflict or even the appearance of one. The fact that this type of bargaining has already occurred for some time seems to undercut his concerns.
Meisburg discussed several other issues, including some--like his attempt to improve bargaining over first contracts--that union advocates will find more agreeable. One that I found particularly interesting was his discussion of the availability of NLRA backpay to undocumented workers:
He found that the U.S. Supreme Court held in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 169 LRRM 2769 (2002), that federal immigration policy as set forth in the Immigration Reform and Control Act prevented the board from awarding back pay to an undocumented worker who was fired for his union activity but who presented false documentation when he was hired. However, Meisburg found that the Supreme Court "did not directly address whether undocumented discriminatees could be entitled to back pay where no fraud was committed by those discriminatees." He asserted that Hoffman Plastic's denial of back pay is "limited to employees who had defrauded their employers" in violation of the IRCA.
In line with that view, Meisburg sought back pay from Mezonos Maven Bakery Inc. on behalf of employees who had never presented fraudulent documentation of their work status and were fired because they made concerted complaints about working conditions. The evidence showed that the employer knew it was hiring undocumented workers in violation of the IRCA, the general counsel said. He explained that an administrative law judge in November 2006 recommended awarding back pay in the Mezonos case and that the employer has appealed the ruling to the board
My reading of Hoffman is that the Court would preclude backpay for all undocumented workers, whether they committed fraud or not. However, I wish Meisburg the best in chipping away to any extent the horrible ruling in Hoffman.
Davis on Age Discrimination Issues for Cash Balance Plans Are Predominantly Resolved
Debra Davis (Reish Luftman Reicher & Cohen) has
published in the Journal of Pension Benefits: At Long Last ... Age
Discrimination Issues for Cash Balance Plans Are Predominantly Resolved.
From the introduction:
As a result of the Pension Protection Act of 2006 and several recent court cases, many of the long lasting age discrimination issues associated with cash balance plans have been resolved. The IRS has even indicated that it will resume issuing favorable determination letters on cash balance plans. As a result, many employers will feel comfortable about their cash balance plans again.
Although I agree with Debra that prospectively, the PPA does
much to protect future pension plan conversions to cash balance plans, I think
the age discrimination issues that surround current cash balance plans and do
not come under the PPA are still somewhat up in the air. The trend in
these cases appears to be that even these conversions are found not to be age
discriminatory, but there are still enough remaining courts who disagree that
this issue will not be put to bed until the Supreme Court decides the issue
once and for all. The Court had the opportunity to do that in the the IBM case
from the 7th Circuit last year, but chose not to grant cert.
Sarkozy Faces General Transportation Strike in France
From CNN.com this morning:
Traffic gridlock gripped the French capital Wednesday as President Nicolas Sarkozy's promised labor reforms went head to head with transport and utility unions who have launched an open-ended nationwide strike.
One in 15 subway trains and about 15 percent of buses were operating Wednesday but the strike halted commuter trains around the Paris area, stranding many suburban commuters.
Roads into the city were jammed as commuters turned to their cars. "I'm fed up with this," said one woman at Saint Lazare train station, where electronic boards informed passengers of severe disruptions to service.
Seven labor unions went on strike Tuesday evening, angry over Sarkozy's plans to reform pensions.
The reforms focus on special pension plans which allow some workers -- mostly train drivers -- to retire as early as 50.
Such general strikes are not permitted under American labor law, but can you imagine what greater economic leverage unions could have in the greater American economy if this type of job action were permitted?
Interestingly, it seems that thus far the French people are siding with the government, but that doesn't mean that these transportation unions won't be successful protecting their pensions in the long run.
Sixth Circuit Enforces Arbitration Agreement Mailed to Employees
Paul Mollica, in Daily Developments, discusses yesterday's Sixth Circuit decision compelling arbitration under a policy received by employees through the mail in a brochure, accepted merely by continued employment. Judge Boyce Martin dissents:
The Court's ruling today goes too far in subordinating the constitutional rights of employees to the convenience of employers. The 'agreement' between Seawright and AGF - which was not signed, contained a unilateral working-as-acceptance provision, and constituted a total waiver of the right to access a court - goes past the acceptable limit of what employers can force upon their employees without the employees' consent.
The case is Seawright v. American Gen Fin Servs., No. 07-5091 (6th Cir. Nov. 13, 2007). For a thorough discussion of offer/acceptance and notice/consent issues in employment arbitration agreements, including offers-by-mail and acceptances-by-continued-employment, see my 2006 article Contract Formation Issues in Employment Arbitration and my 2007 article Beyond the Protocol: Recent Trends in Employment Arbitration.
November 13, 2007
Oral Argument Date Set for Supreme Court LaRue ERISA Case
The Legal Information Institute (LII) of Cornell Law School is reporting that
oral argument has been set in the ERISA remedies case of LaRue v. DeWolff,
Boberg & Assoc. (06-856) for Monday, November 26th (the Monday after the
At stake, the scope of remedies available in the 401(k) plan context under ERISA Sections 502(a)(2) and 502(a)(3). LII writes:
James LaRue, an employee of the management consulting firm DeWolff, Bobert & Associates, sued his employer for improper management of his 401(k) pension plan. Under DeWolff's pension plan, LaRue could choose among a variety of investment options for his individual account. In his suit, LaRue alleged that DeWolff failed to follow his investment instructions. LaRue sued under sections 502(a)(2) and 502(a)(3) of the Employee Retirement Income Security Act (ERISA).
The Fourth Circuit held that neither section authorized LaRue's claim because it was an individual claim and because LaRue sought compensatory damages. LaRue argues that his claim benefits the plan as a whole rather than himself individually, and that he seeks equitable relief rather than compensatory damages. The outcome of this case will determine whether an individual can use these provisions to sue an employer for improper management of a pension fund.
Symposium Announcement & Call for Papers
The Hofstra Labor & Employment Law Journal writes to tell us that it will be hosting a symposium on Emerging Technology and Employee Privacy on March 7, 2008. Samuel Estreicher, Matthew Finkin, Robert Sprague, Timothy Tobin, and Mark Reinharz are confirmed participants, but there is room for more, so the Journal also is issuing a Call for Papers. To submit an article, contact Managing Editor of Articles Desiree Busching; for all other questions related to the Symposium, contact Daniel Vaillant.
Liability for Cat's Paw Discrimination
Readers might recall Paul's post in April about the Supreme Court's granting cert, then subsequently dismissing, a cat's paw case. Tim Davis, at attorney at The Lawrence Firm (and Chase graduate), just posted on SSRN what I believe is the first law review article on cat's paw liability: Beyond the Cat's Paw: An Argument for a Substantially Influences Standard for Title VII and ADEA Liability. The article is forthcoming in Pierce Law Review. Here's the abstract:
“Cat's paw” discrimination occurs when a supervisor with discriminatory animus reports falsely to a personnel committee that an employee is performing poorly, inducing the committee to fire the employee. The Fourth Circuit has held that the fired employee has no cause of action for discrimination; the errant committee, the Fourth Circuit reasons, fired the employee because of the misinformation supplied by the supervisor and not because of the committee's discriminatory animus. The Seventh Circuit, relying on agency principles, has rejected this approach. Analogizing the situation to an Aseop's Fable in which a monkey induced a cat to commit a crime for him, the Seventh Circuit has held that “cat's paw” discrimination should not shield an employer from liability.
This article agrees with the Seventh Circuit's conclusion that the employer should be held liable. Unfortunately, however, the Seventh Circuit's mis-application of agency principles may result in “cat's paw” liability not attaching when the person reporting to a personnel committee is not a supervisor, but is instead a co-worker or a non-employee such as an independent contractor or a customer. This article urges courts to adopt a “substantial influence” standard by which an employer would be liable whenever a biased report to a personnel committee or other ultimate decisionmaker has a substantial influence on a decision to take an adverse employment action against an employee.
November 12, 2007
Score Another Point for Happy Hours
I posted earlier this year about the D.C. Circuit reversing the NLRB's refusal to find that an employer committed an unfair labor practice by implementing a broad no-fraternization policy. A recent study provides further reason for employers to allow, if not encourage, employee fraternization. According to the New York Times:
[A] new report shows that the solution to work stress may be found in the cubicle next door. Employees who feel social support at work are far less likely to suffer serious depression problems, according to a study published in the American Journal of Public Health.
Researchers from the University of Rochester Medical Center studied data collected from more than 24,000 Canadian workers in 2002. They found that 5 percent of the workers suffered from serious bouts of depression. [In examining those findings], the Rochester scientists detected a surprising trend. People who said they felt generally supported by their colleagues and could lean on co-workers in a time of crisis were spared the rigors of job stress. In the study, men and women who felt little social support at work were two to three times more likely to suffer major bouts of depression. . . .
The findings are especially important to employers and managers who sometimes view fraternizing by colleagues as a distraction that interferes with productivity. But Dr. Robertson Blackmore notes that because work friendships lower job stress and risk for major depression, employees who get along and support each other are likely to be more productive. Depression at work reduces employee productivity, increases disability and absences and may lead to premature retirement, the journal report notes.
I'd like to think that this conclusion is obvious, but that's clearly not the case. At least now I'll have a good excuse to give my wife when I go out for a drink with colleagues.
Scottish Gas fired 50 employees at corporate headquarters after the company discovered the employees had exploited a glitch in the company's reward program to pad their income. The company, it seems, had a reward program by which employees could buy Winnie-the-Pooh bracelets for U.S.$23.19. Unfortunately for the company, the website at which the employees placed their orders gave employees a credit in this amount for each bracelet purchased, instead of a debit. One employee cleared some U.S.$18,500 after "buying" 800 of the bracelets.
Recently Published Scholarship
Comments & Notes
- Eisha Jain, Realizing the Potential of the Joint Harassment/Retaliation Claim, 117 Yale L.J. 120 (2007).
- Beth E. Schleifer, Progressive Accommodation: Moving Towards Legislatively Approved Intermittent Parental Leave, 37 Seton Hall L. Rev. 1127 (2007).
- Stephen Dacus, Miller v. Department of Corrections: The Application of Title VII to Consensual, Indirect Employer Conduct, 59 Okla. L. Rev. 833 (2006).
- Alexandra W. Griffin, Women and Weight-Based Employment Discrimination, 13 Cardozo J. L. & Gender 631 (2007).
- Sarah M. Baum, Callahan v. Edgewater Care & Rehabilitation Center: The Illinois Whistleblower Act Does Not Preempt the Common Law Tort of Retaliatory Discharge, 57 DePaul L. Rev. 161 (2007).