December 22, 2007
Michael Zimmer reminds us about the Global Workplace Conference, to be held on February 15 & 16 at Thomas Jefferson School of Law in San Diego and simulcast to LSU in Baton Rouge and Seton Hall in Newark. Its focus will be on cutting edge issues in international and comparative employment law and teaching and practicing employment law at a global level.
Here is a small sample of the all-star cast and the topics they will address: Kathy Stone will speak on ILO standards and the soft law of international labor rights; Charlie Morris' topic is What's New is Old: How the United States can comply with its obligations under the labor provisions of the ICCPR and the 1998 Declaration on Fundamental Principles and Rights at Work, Peggie Smith will talk about Promoting the Workplace Rights of Home Care Workers: A Comparative Perspective, Tim Glynn will speak about A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders To Move Beyond (Artificial) Substantive Ones, Susan Bisom-Rapp will discuss teaching the course in China, Avoiding and Utilizing the Minefields: Teaching International and Comparative Employment Law in China, Donald Dowling of White & Case will speak about Understanding Real-World International Employment Law Practice and Rafael Gely will address Workplace Songs: A Comparative Perspective.
Top-5 International Employment & Labor Law SSRN Downloads
- Katherine V.W. Stone, In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risks in the United States (89).
- Sanford M. Jacoby, Labor and Finance: Perspectives on Risk, Inequality, and Democracy (76).
- Simon Deakin, Priya Lele, & Mathias M. Siems, The Evolution of Labour Law: Calibrating and Comparing Regulatory Regimes (53).
- Michael C. Duff (photo above), Days without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act (31).
- Ying Ge, What Do Unions Do in China? (27).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- William F. Sharpe, Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (267).
- Stephen F. Diamond, Legal Implications of Proposed GM/UAW VEBA (208).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 1 (145).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 2 (132).
- Katherine V.W. Stone (photo above), In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risks in the United States (89).
December 21, 2007
Major NLRB Internet and Discrimination Decision
Forgive me both for the length and tenor of this post. This decision struck a knife into two issues that I've written about recently (including one that that just went through what I thought was the final read).
The NLRB, in another 3-2, decision has just hit a two-for-one in an opinion that I can only describe as awful. Register-Guard, 351 N.L.R.B. No. 70 (Dec. 16, 2007), involved an employer's policy against non-job-related emails that was only enforced against union messages. The majority, in finding for the employer--surprise--took an overly restrictive view on the importance of emails, which was no shock given the oral argument. However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used. First, with regard to the email policy, the majority concluded that:
An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.
Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . . .
In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviation requires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.
The majority's analysis here is weak. The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ). Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law. As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation. Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule. The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances. I'm obviously supportive, given that I argued for that exact rule.
As for the discrimination issue. The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context. To quote my own summary of the various definitions of discrimination, which include: "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions." The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):
In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).” Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.”
The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.”
Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees
I'll give you another example. Under the Board's new rule, an employer could create a free speech area, allowing any speech--racist, communist, religious, etc.--except for union-related speech. This makes no sense at all, particularly because, as the dissent stresses, Section 8(a)(1) prohibits employer actions that reasonably tend to interfere with employees' exercise of their Section 7 rights. I can't imagine an employee that would not feel chilled in their ability to engage in collective action by an employer's open hostility to all union-related speech. When I mention this definition of discrimination in class (which has a large proportion of conservative students) they all laugh. Unfortunately, it's not particularly funny anymore, because this ridiculous rule will now be applied nationally.
I've only given the case a quick read, so I may comment more later. Note that this came out late on the Friday before Christmas and just after the Senate hearing on the NLRB's recent pro-employer decisions. I suspect that the timing no accident, which make this embarrassment of a decision even more so. The final result of all this is that no new Board members will be confirmed by the Senate until the next presidential election, leaving only two members on the Board. Normally, even with a Board I disagree with, I consider that a problem for the overall enforcement of the NLRA. But at this point, I can only consider it an act of mercy upon the statute.
Empirical Study of Non-Employment Arbitration Agreements
Theodore Eisenberg (Cornell), Geoffrey P. Miller (NYU), & Emily Sherwin (Cornell) have just posted on SSRN their article Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts. Here's the abstract:
We provide the first study of varying use of arbitration clauses across contracts within the same firms. Using a sample of 26 consumer contracts and 164 nonconsumer contracts from large public corporations, we compared arbitration clause use in consumer contracts with their use in the same firms' nonconsumer contracts. Over three-quarters of the consumer agreements provided for mandatory arbitration but less than 10% the firms' material nonconsumer, nonemployment contracts included arbitration clauses. The absence of arbitration provisions in nearly all material contracts suggests that, ex ante, many firms value, even prefer, litigation over arbitration to resolve disputes with peers. The frequent use of arbitration clauses in the same firms' consumer contracts appears to be an effort to preclude aggregate consumer action rather than, as often claimed, an effort to promote fair and efficient dispute resolution. Other common features of civil litigation reform discussion, avoidance of juries and loser-pays attorney fee rules, find little support in the pattern of contractual terms we observe.
This is a great study -- I only wish the authors had included employment arbitration. Although in many respects, employment arbitration and consumer arbitration are similar, I doubt that many companies with employment arbitration agreements are motivated primarily by a desire to avoid class actions, if for no other reason than because employment class actions are less common than consumer class actions.
Zatz on Prison Labor
Noah Zatz (UCLA) has just posted on SSRN his article (forthcoming Vanderbilt L. Rev.) Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships. Here's the abstract:
Who is a worker? This question animates both feminist scholarship examining the status of non-market work relative to employment and labor law scholarship examining how firms' restructuring of labor markets challenges legal definitions of employment itself. This Article brings together these inquiries to show how legal determinations of employee status rely upon distinctions between market and non-market work.
By analyzing statutory employment law claims involving prison labor, I identify a previously unrecognized economic dimension to disputes over the employment relationship's scope. This economic dimension is analytically distinct from the traditional control dimension rooted in agency law. Courts often hold that inmates are not employees, despite being paid for their work, because their efforts lack the economic character necessary to form an employment relationship. Throughout employment law similar controversies arise over what can be characterized as paid non-market work in welfare, educational, medical, and religious institutions. When analyzing these disputes, courts are torn between two rival accounts of what makes employment economic. The more restrictive one requires a market relationship; the more expansive one requires productive work. Neither approach is viable.
Instead, to understand employment's economic dimension, we must dispense with the usual conception of employment law as identifying and regulating a relationship that exists independently in society. Instead, employment law partially constitutes employment as economic, giving it coherence, differentiating it from other relationships, and planting it in the market economy. Employment law helps create the very divide between economic and noneconomic relationships to which it purports to respond.
December 20, 2007
WSJ: Mandatory Arbitration Increasing
Earlier this week, the Wall Street Journal reported that the incidence of mandatory arbitration clauses in the workplace are increasing:
In a country that loves litigation, it has become harder to sue your boss.
Workers who feel wronged by their employers often assume that they can take their grievances to court, but increasingly, they must pursue their claims through arbitration -- a route that can result in smaller damage awards.
The reach of arbitration in employment disputes has been evident in a high-profile case over alleged wrongdoing in Iraq. Jamie Leigh Jones, a 23-year-old Texan, claims that in 2005 she was raped there by fellow employees at Kellogg Brown & Root Inc., a government contractor and former Halliburton Inc. subsidiary . . . .
Employment arbitration now covers a wide swath of industries, from restaurants and retailers to law firms and banks. An estimated 15% to 20% of businesses now require employees to arbitrate disputes, according to Alexander Colvin, a labor studies professor at Pennsylvania State University. By contrast, a 1995 government study indicated that less than 10% of companies had employee-arbitration programs.
My only thought here is that as more employers come to understand the benefit of predispute mandatory arbitration clauses, and that if drafted right they are readily enforceable, more companies will come to adopt them. This is probably not a great thing for employees, as they must usually sign such clauses on a take-it-or-leave-it basis.
Like others, in particular Michael Green, I much prefer post-dispute arbitration clauses which tend to be more voluntary between the two sides.
Hat Tip: Kara Lincoln
December 19, 2007
Corporate Social Responsibility Report
Is CSR reporting measuring the right things? How can stakeholders assess whether a company's business practices bear any relation to its CSR principles and objectives?
In Codes Memo #22, The Next Generation of CSR Reporting: Will Better Reporting Result in Better Working Conditions?, the Maquila Solidarity Network offers a critical assessment of "next generation" CSR reporting in the apparel and footwear sector, with particular attention to recent reports of Nike, Wal-Mart, Gap Inc., and Mountain Equipment Co-op (MEC), as well as the Global Reporting Initiative's Draft Apparel and Footwear Sector Supplement.
We conclude with a series of recommendations for more complete and transparent reporting that would provide stakeholders with sufficient information to assess whether companies are integrating social responsibility into their business practices and making real progress on labour standards compliance in their global supply chains.
An interesting report, check it out.
Give 'Em Hell, Wilma
A number of blog readers have sent along this Essay by Board Member Wilma Liebman. Here is the abstract from Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, to be published in the Berkeley Journal of Employment and Labor Law:
In this Essay, the senior member of the National Labor Relations Board reflects on the aging of American labor law and the agency that administers it. In her view, the National Labor Relations Act, which has not been updated in 60 years, is now out of sync with a transformed economy. Meanwhile, the Board, even accounting for the statutory, judicial and political constraints under which it operates, has failed in its duty to apply the statute dynamically. The author suggests, however, that the stakes are too high to abandon hope for a revitalization of labor law and policy.
I also agree that the current Bush II Board has set back labor law policy in this country to another time before the enactment of the Wagner Act. But like Member Liebman, I hold out hope that better times are ahead for labor in 2009 with a Democratic administration and new Board Members who understand the spirit of the NLRA.
There might also be a chance for labor law reform legislation for the first time in many years.
Hat Tip: Hank Leland
Senate Passes Federal Employee Protection of Disclosures Act
Last evening the U.S. Senate, by unanimous consent, passed the Federal Employee Protection of Disclosures Act (S.274). This law enhances the protection for federal employee whistleblowers by expanding the scope of protected activity to cover complaints within an employees chain of command.
Passage of S.274 now sets the stage for a conference between the House and Senate to agree final legislative language. On March 14, 2007 the House enacted the Whistleblower Protection Enhancement Act (H.R. 985), which expanded the scope of whistleblower protections to national security related agencies, permitted employees to obtain jury trials in federal court, provided enhanced protections for federal contractors and protected employees who exposed misconduct to their managers.
This is great news and will hopefully patch the holes in the current federal employee whistle blowing law that I and others have documented. However, as hopeful as I am, there have been many whistle blower fixes in the past, and they never quite seem to do the trick. Let's hope that trend is broken here.
Hat Tip: Elaine Mittleman
Petition for Rehearing in Alaska v. EEOC
A little more than a month ago, we wrote about the 9th Circuit's decision in Alaska v. EEOC. In that case:
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."
The employee-intervenor has now a filed a petition for rehearing.
As may be gathered from my previous post on this case, I hope the petition is granted.
December 18, 2007
Writers Strike, Talk Shows, and the Oscars
Proving yet again that my powers of prediction are poor, there seems to be no end in sight for the Hollywood writers strike. This week has seen several interesting developments, which the New York Times nicely summarizes. No doubt because of their unique production process, talk shows have faced a decision whether to honor the strike or cross the picket line in order to keep other employees on the job. Carson Daly and Ellen DeGeneres were the first to announce that they would start production and faced significant hostility from the Writers Guild for their decision. This week both Jay Leno and Conan O'Brien have followed suit. DeGeneres, Leno, and O'Brien are members of the Writers Guild--indeed, O'Brien spent many years as a writer on The Simpsons and Saturday Night Live--but interestingly, opposition to Leno's and O'Brien's move has been more muted, reportedly because they honored the strike for as long as they did and have been paying their staffs during that time.
David Letterman is also trying to return to the air, but under far different circumstances. Because his production company owns his show, he is able to negotiate an independent agreement with the Writers Guild. Negotiations are still under way, so it's not a done deal at this point.
Finally, the writers are refusing to allow clips of movies and past Academy Awards shows to be aired on this year's show. I'm not a big fan of awards shows, but a lot of people are and the symbolic impact of the writers being able to interfere with such a high-profile event is significant.
It remains to be seen whether these recent defections will weaken the Writers Guild's position enough to prompt a settlement. I'm certainly not going to make a prediction this time.
DOL Proposes Civil Penalty Rules for Pension Protection Act
The Department of Labor today announced that it will propose tomorrow a regulation for assessing civil penalties against plan administrators who fail to disclose certain documents to participants, beneficiaries, and others as required by ERISA and the Pension Protection Act (PPA).
The PPA established new disclosure provisions relating to funding-based limits on benefit accruals and certain forms of benefit distributions, plan actuarial and financial reports, withdrawal liability of contributing employers, and participants' rights and obligations under automatic contribution arrangements. The PPA gives the department authority to assess civil monetary penalties of up to $1,000 per day against plan administrators for violations of the new disclosure requirements. The proposed regulation provides the administrative procedures for assessing and contesting such penalties and does not address substantive provisions of the new disclosure requirements.
The proposed regulation will be published in tomorrow's edition of the Federal Register.
Lynk: Accommodating Disability in Canada
Michael Lynk (W. Ontario) has just posted on SSRN his article Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada. Here's the abstract:
The rise of the accommodation duty, and particularly the accommodation rights of employees with disabilities, has been the greatest single innovation within Canadian labour law over the past twenty years. High Law principles on disability accommodation have been developed through a series of Supreme Court of Canada rulings, and these principles have been applied through the voluminous Low Law decisions of labour arbitrators and human rights tribunals. This article examines the dismal employment status of employees with disabilities in Canada, traces the emergence of the Supreme Court of Canada rulings, and critically examines the caselaw on disability accommodation from labour arbitrators, human rights tribunals and the common law courts. Although Canadian labour law transplanted the accommodation duty from the early civil rights jurisprudence in the United States, recent Canadian law on disability accommodation has headed in a much different direction than its American progenitor.
I.e., as the U.S. Supreme Court has consistently found ways to restrict the accommodation duty, the Canadian Supreme Court has done the opposite.
Zimmer: Decent Work with a Living Wage
Michael Zimmer (Seton Hall) has just posted on SSRN his chapter (forthcoming Blanpain & Tiraboschi, Global Labor Market: From Globalization to Flexicurity (2008)) Decent Work with a Living Wage. Here's the abstract:
The effects of globalization on employment justify augmenting the fundamental principles articulated in the ILO's 1998 Declaration by including a global goal of decent work with a living wage. Adding the principle of decent work with a living wage can help keep labor law relevant because it can be the organizing principle for an array of unions and other groups interested in worker welfare to push for its implementation as a matter of international, regional and national law. The goal of decent work with a living wage can be a rallying cry to help overcome the prevailing neoliberal assumption that the present set of very limited regulations of the market is a natural law. Regaining the intellectual high ground for claims of worker rights to decent work with a living wage can be the product for, but also the cause of, organized action by those who share values in fair treatment at a global level. Unions, but also other NGOs, need to see that it is in their long term interest as well as the long term interest of the workers it claims to represent to reach across borders to work together to achieve this goal. Conflicting strategic interests and different legal and organizational cultures make this a daunting goal, but one worth pursuing.
December 17, 2007
Wagner Fact Pattern Released
The fact pattern for this year's Wagner Moot Court Competition, hosted every year by New York Law School, has just been released. Issue one is cat's paw liability. My former student Tim Davis has written an article on this topic that will be published shortly in Pierce Law Review -- see Beyond the Cat's Paw: An Argument for a Substantially Influences Standard for Title VII and ADEA Liability. Issue two is transgender discrimination. Jamie Ireland and I have written an article on that topic that will be published shortly by UCLA Women's Law Journal -- see Transgender Employment Discrimination.
Hat tip: Lawrence Rosenthal.
Mandatory Retirement Age for Commerical Airline Pilots Goes Up
One of the few age limitations* that has been enshrined in legislation bites the dust, as Congress unanimously passes legislation allowing pilots flying for commercial airlines to fly until age 65, rather than the current 60. See Southwest pilots union praises new 65 rule . . . .
* At least on the end I now most personally identify with!
I might not be able to identify with this change in rule as much as Michael, but I think it well past time that these old assumptions about pilot's health become more consistent with our current medical understandings.
Now, it we can just get our OSHA standards out of the '70s . . . .
Another High Profile Sex Scandal: Kansas AG Version
It seems that as long as there are high profile officials (of the male variety), there will be always be sex scandals of some sort or another. Here is the latest concerning the soon-to-be former Kansas Attorney General Paul Morrison (via AP):
The state attorney general announced his resignation Friday, days after acknowledging an extramarital affair with a former employee who accused him of sexual harassment and professional misconduct.
"I have held others accountable for their actions, and now I must be held accountable for my mistakes," Paul Morrison said in a statement read to reporters outside his office . . . .
Morrison's resignation is effective Jan. 31, 2008. Gov. Kathleen Sebelius, a fellow Democrat, will appoint his replacement to serve the remaining three years of the term.
Linda Carter, former director of administration for the Johnson County district attorney's office, has said she and Morrison had a two-year affair starting in September 2005 - meaning it continued while Morrison ran for attorney general last year and after he took office.
Another sad case and again a cautionary tale that nobody is above the law when it comes to sexual harassment.
Recently Published Scholarship
- Michael C. Duff (left), Days Without Immigrants: Analysis and Implications of Immigration Rallies Under the National Labor Relations Act, 85 Denver U.L. Rev. 93 (2007).
- John R. Kirk (right) & Marguerite J. Slagle, ERISA Preemption: A Survey of the Kentucky Courts' Interpretation of the Sixth Circuit's Preemption Analysis, 34 N. Ky. L. Rev. 575 (2007).
- Marc A. Sherman, Webmail at Work: The Case for Protection Against Employer Monitoring, 23 Touro L. Rev. 647 (2007).
Comments, Notes, & Student Articles
- Eddie A. Jauregui, The Citizenship Harms of Workplace Discrimination, 40 Colum. J. L. & Soc. Probs. 347 (2007).
- Mary Kate Sheridan, Just Because It's Sex Doesn't Mean It's Because of Sex: The Need for New Legislation to Target Sexual Favoritism, 40 Colum. J. L. & Soc. Probs. 379 (2007).
- Jennifer Christian, Whistleblower Protection Under Sarbanes-Oxley: Key Provisions and Recent Case Developments, 31 Okla. City U. L. Rev. 331 (2006).
December 16, 2007
Top-5 Employment SSRN Downloads
- Lior Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information (168).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 1 (140).
- James A. Wooten , A Legislative and Political History of ERISA Preemption, Part 2 (128).
- Eric Claeys, The Private Society and the Public Good in John Locke's Thought (115).
- Christine Jolls (photo above), Antidiscrimination Law's Effect on Implicit Bias (108).