Saturday, February 10, 2007
Here is an interesting reverse discrimination case against the NFL. The former associate supervisor of officiating for the NFL, who is white, claims that he was fired after a group of minority NFL officials complained that he was racially biased in how he carried out the duties of his position.
Earnie Frantz, a head linesman in the NFL from 1981 to 2001, said he was fired as associate supervisor of officiating in the spring of 2005.
In a lawsuit filed in Manhattan, Frantz said part of his job as a supervisor included grading the performance of officials after each week of play.
But while performing that role, the suit said, Frantz became a target of complaints by "a vocal component of the minority officiating crew," who complained that he was racially biased and graded minorities more harshly than whites.
"In terminating Mr. Frantz's employment, the NFL bowed to the pressure of the minority members of the officiating crews whom he supervised," the suit said.
Frantz, who is white, claimed in the suit that he was essentially fired "because of the color of his skin."
These allegations are unusual. Usually, a person fired as a result of a harassment or discrimination investigation does not file their own discrimination charges, but alleges something like intentional interference with contractual relations.
I am skeptical that Frantz will be able to show that he was fired because he was white and it is much more likely that the League will be able to establish that its termination decision was based on its belief (whether accurate or not) that he was treating minority officials unfairly based on racial considerations. And even if the NFL was wrong to give credence to the minority officials' allegations, that should not be seen as amounting to reverse race or color discrimination on the part of the League.
What's also interesting about this case is that it reminds me of a "cat's paw" or "rubber stamp case," the type of case the Supreme Court is scheduled to hear in the BCI case this spring. In such cases, the allegation is that the decision-maker (although free of bias) was substantially influenced by biased subordinates in making it decision to terminate an employee and thus, the employer should be liable for employment discrimination. But in those cases, it is the subordinate employee that is terminated because of a biased supervisor, not the other way around.
Should it make a difference? I think so. The argument would be that it should be harder to impute liability to the employer in such a situation because the employer is acting separate and independent of the subordinate employees in coming to its decision and the agency relationship, if any, is much more attenuated.
Hat Tip: Ann Marie Mayers
David Weil has posted on SSRN his forward-looking essay Crafting a Progressive Workplace Regulatory Policy: Why Enforcement Matters. Here's the abstract:
This essay sets out a progressive workplace regulatory policy that can also prove institutionally and politically tractable. I lay out a broad regulatory agenda on normative grounds and then discuss how existing federal workplace policies provide for those ends. Given this "installed base" of regulations, I focus on what regulatory strategies a new administration might draw upon to most effectively advance those goals given existing systems. Finally, I argue that such a regulatory strategy is consistent with a variety of institutional factors affecting federal policy.
- Richard T. Karcher, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players (72).
- Dianne Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (65).
- Cass R. Sunstein (photo above), Cost-Benefit Anaylsis Without Analyzing Costs of Benefits: Reasonable Accomodation, Balancing, and Stigmatic Harms (29).
- Mitchell H. Rubinstein, Attorney Labor Unions (25).
- David G. Blanchflower, Alex Bryosn, & John Forth, Workplace Industrial Relations in Britain, 1980-2004 (22).
- David Kinley & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (58).
- Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey (30).
- Holger M. Mueller & Thomas Philippon, Family Firms, Paternalism, and Labor Relations (15).
Friday, February 9, 2007
The National Academy of Arbitrators is sponsoring a major national conference on due process in employment arbitration. The conference, entitled, "Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution," will be held April 13-14, 2007 at Chicago-Kent College of Law, in Chicago, Illinois. It will bring together some of the leading management, employee and union representatives, the major employment arbitrator appointing agencies, leading arbitrators and leading academics in the field for an exploration of the state and future or due process protections in employment arbitration that will draw on 12 years of experience with the Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising out of the Employment Relationship.
Our own Rick Bales will be speaking at the conference.
For the complete conference agenda, go to http://www.naarb.org/eventsFiles/62-agenda.pdf, and for registration and hotel information, go to http://www.naarb.org/eventsFiles/62-description.pdf.
PlanSponsor.com last week had a summary on an important new regulatory guidance issued by the Department of Labor's Employee Benefit Security Administration (EBSA) concerning the duties of ERISA fiduciaries to select and monitor investment advisers for their plans and whether fiduciaries could be liable for the advice given by these investment advisers.
Here are some excerpts:
While plan sponsors and other fiduciaries must exercise prudence in choosing a fiduciary investment adviser and periodically monitor the adviser’s abilities and qualifications, they do not have to oversee the providing of specific advice.
That was a key holding in a regulatory guidance document released Friday by the U.S. Department of Labor (DoL) Employee Benefits Security Administration (EBSA) in response to questions from the retirement services industry about the Pension Protection Act's effects on the DoL's approach to the sensitive plan advice issue.
Declared EBSA in Field Assistance Bulletin (FAB) 2007-01: "[I]t is the view of the Department that a plan sponsor or other fiduciary that prudently selects and monitors an investment advice provider will not be liable for the advice furnished by such provider to the plan's participants and beneficiaries, whether or not that advice is provided pursuant to the (prohibited transaction) statutory exemption under (Employee Retirement Income Security Act) section 408(b)(14)."
Read the whole bulletin for further insight on what it means for a fiduciary to properly select and monitor investment advisers.
Jim Hawkins (student at Texas) has posted on SSRN his forthcoming piece in the Berkeley Labor and Employment Law Journal entitled: Free Expression's Pivotal Function in the Early Labor Movement.
Here's the abstract:
In this manuscript, I describe and analyze the important role free speech played in the early labor movement. Labor scholars widely acknowledge free speech's essential function in the labor movement, so it is not surprising that early labor extensively used expression. It is surprising, however, that this use of expression has gone unnoticed by constitutional historians. First Amendment scholarship has largely neglected the history of free speech before the Civil War, and recent attempts to recapture this history have focused solely on the abolition movement - leaving early labor speech truly forgotten in the history of free speech.
This is a piece that I read in its entirety for Jim during earlier drafts and it is an excellent piece of labor history. I recommend it highly.
Alison Morantz and Alexandre Mas have just posted on SSRN their article Does Post-Accident Drug Testing Reduce Injuries? Evidence from a Large Retail Chain. Here's the abstract:
This study examines the effects on occupational injury claims of a recently-implemented post-accident drug testing (PADT) program in a large Fortune 500 retail chain with homogeneous facilities in a large number of U.S. states. We find that accident-related claims have fallen significantly in affected districts during the first fifteen months of the program. The observed drop in claims was driven mostly by the behavior of male, higher-tenure, and full-time employees. Moreover, conditional on being tested, full-time, higher tenure, and female workers were the least likely to test positive for illegal drugs. Overall, our results lend considerable credence to the view that PADT programs can reduce workers' compensation claims even in workplaces that already utilize other forms of employee drug testing, particularly among workers who value their jobs the most highly. We also attempt to distinguish among two possible explanations for the observed declines: employees' tendency to forgo using drugs and/or take greater care on the job; and a fall in employees' willingness to report accidents. Our results, although certainly not definitive, suggest that at least some portion of the observed decline may be due to underreporting. We conclude that although PADT is a promising method of improving occupational safety, it raises special policy concerns insofar as it may encourage some employees to hide their injuries.
Meredith Render has posted on SSRN her article Misogyny, Androgyny, and Sexual Harassment: Sex Discrimination in a Gender-Deconstructed World. Here's the abstract:
Understanding sexual harassment as a form of discrimination “because of sex” has grown increasingly difficult as our understandings of both gender and sex have grown richer and more complex. This piece offers a new descriptive model for understanding gender bias in the context of sexual harassment law. The piece argues that two separate sets of ideas about gender have intersected to produce a new picture of gender “equality”: one that is separated from a binary model of men and women, but that nonetheless continues to disadvantage women as compared to men. The paper refers to this idea as the androcentric-assimilation model of female liberation and argues that the adoption of this particular model of female liberation has presented an assimilation option to women who wish to “succeed” while obfuscating the fact that our ideas about gender remain hierarchically arranged. The paper suggests that this phenomenon may underlie some of the mystery surrounding gendered workplace outcomes, and specifically that this descriptive framing provides a foundation for understanding sexual harassment - an ostensibly gender-neutral behavior when one considers that women can harass men as well as one another - as a tool of discrimination that continues to disproportionately disadvantage women. The piece concludes, therefore, that sexual harassment law is properly conceptualized within an antidiscrimination framework.
Volume 24, No. 1, Fall 2006
- Matthew W. Finkin (left), Shoring Up the Citadel (At-Will-Employment), p. 1.
- Robert B. Moberly (second), Labor-Management Relations During the Clinton Administration, p. 31.
- Michael L. DeMichele (third) & Richard A. Bales (fourth), Unilateral-Modification Provisions in Employment Arbitration Agreements, p. 63.
- Robert Lewis (right), Mediation of a Sexual Harassment Claim, p. 87.
- Robert P. Riordan & Leslie E. Wood, The Whistleblower Provision of Sarbanes-Oxley: Discerning the Scope of ‘Protected Activity’, p. 95.
- Dennis J. Loiacono & Jillian Maloff, Be Our Guest: Synthesizing a Realistic Guest Worker Program as an Element of Comprehensive Immigration Reform, p. 111.
- Haley E. Olam & Erin S. Stamper, The Suspension of the Davis Bacon Act and the Exploitation of Migrant Workers in the Wake of Hurricane Katrina, p. 145.
Thursday, February 8, 2007
Alan Childress (Tulane), of the Legal Profession Blog, writes to point out a story to us about a group of unionized California newspaper reporters who were fired after hanging a sign urging motorists not to subscribe to their newspaper (via Yahoo! News and AP):
Six journalists have been fired from the Santa Barbara News-Press for placing a sign over a freeway overpass urging people to cancel their subscriptions, an attorney for the newspaper said.
Three reporters were dismissed late Monday followed by another three on Tuesday, attorney Barry Cappello said. They helped hang a banner last Friday during morning rush hour that read "Cancel Your Newspaper Today" and "Protect Free Speech," Cappello said.
"They are trying to injure and disparage the company," Cappello said. "People who want to engage in conduct that harms the newspaper ... will not remain."
This whole dispute stems from a larger labor-management show-down. In September, newsroom employees voted overwhelmingly to join the union, "but the paper and employees have been clashing since then over the legitimacy of the vote. A hearing will be held next month on four other charges of unfair labor practices the union made against the newspaper."
Although the union has already filed a ULP charge on behalf of the fired workers, this seems like a classic Jefferson Standard "unlawful means" scenario. Employees are not considered to be engaged in lawful Section 7 protected activity if their conduct disparages the product of their employer and is unconnected to the underlying labor dispute.
In other words, activity is not protected under the labor law if the attack on the employer product is related to no labor practice of the company and does not make reference to wage, hours, or working conditions. On the other hand, there may be an argument that the "Cancel" sign asked for public sympathy and support and that might cut in the other direction.
But without Section 7 rights, the employer is free to fire them for their conduct without worrying about committing a ULP violation. From the facts of this article, it sounds like at least one of the signs the workers were hanging amounted to product disparagement and disloyal conduct (indeed very much like the facts of the Jefferson Standard case itself), and therefore, they may not have any protection under the NLRA.
Here is a summary of what is included in this newest addition to the Law Stories series:
Employment law is fast emerging as a dominant area of practice and concern. This exciting new Law Stories title provides behind-the-scenes descriptions of the landmark cases — the litigants, the lawyers, the strategy — that helped shape this growing field. This is an account of emerging law from the ground up. The objective is to help the student understand that, well before appellate judges are involved, the basic narrative and the doctrinal/policy potential of the case has been set by the decisions of litigants and their representatives. Several chapters are also devoted to the story behind some of the principal statutes in the area.
Once a year - or so it seems - as part of Super Bowl week, media coverage is given to stories about meager pensions provided to the older retired NFL football players. A major part of the reason is that these guys are not represented by the Players Association. But at least they have pensions. And you'd think that all major professional sports have [pensions]. All do - except for NASCAR drivers [and PGA golfers, though they at least have a deferred-compensation plan].
Why? NASCAR drivers are independent contractors, not employees.
A federal judge yesterday ruled that Comair could unilaterally impose $15.8 million in wage concessions on its pilots, and simultaneously issued an injunction forbidding the pilots' union from striking. Comair says it will impose the cuts this weekend. The pilots' union says it will abide by the judge's order, but it wouldn't be surprised if many of its pilots simply decided to quit.
As I said last year when the Northwest Airlines flight attendants were threatening to strike, I think the court got the law wrong. Comair's argument, which the court adopted, is that Section 1113 of the bankruptcy code gives companies the right to nullify collective bargaining agreements through bankruptcy proceedings, and gives courts the authority to issue no-strike injunctions to facillitate the emergence from bankruptcy. But an earlier statute -- the Norris-LaGuardia Act -- prohibits federal courts from issuing labor injunctions, and there is nothing in the history of the Bankruptcy Act indicating that Congress intended to override the Norris-LaGuardia Act.
The judge's decision is also wrong as a matter of policy. The only bargaining power unions have is the power to (threaten a) strike. If that’s taken away, then the clock on American labor relations is turned back to the late 1800s and early 1900s, when federal courts routinely issued injunctions prohibiting strikes, unions struck anyway because they had nothing left to lose, and the result often was at best major disruptions in production and at worst blood in the streets.
For more on yesterday's ruling and the parties' reaction to it, see Alexander Coolidge's article Comair Pilots Lose Key Round in today's Cincinnati Enquirer.
Pepperdine Law Review
Volume 34, Number 2, 2007
- Laura T. Kessler (left), Keeping Discrimination Theory Front and Center in the Discourse Over Work and Family Conflict, p. 313.
- Richard N. Block, Work-Family Legislation in the United States, Canada, and Western Europe: A Quantitative Comparison, p. 333.
- Katharine K. Baker (second), Supporting Children, Balancing Lives, p. 359.
- Joan C. Williams (third), Stephanie Bornstein (right), Diana Reddy, & Betsy A. Williams, Law Firms as Defendants: Family Responsibilities Discrimination in Legal Workplaces, p. 393.
- Marlena Studer, Negotiating the ‘Labor of Love’: How Resources, Time, and Gender Shape Parenting Agreements, p. 417.
- Debra Wong Yang & Patricia A. Donahue, Protecting Children From Online Exploitation and Abuse: An Overview of Project Safe Childhood, p. 439.
Wednesday, February 7, 2007
OSHA yesterday unveiled a new workplace safety and health guidance to help employers prepare for an influenza pandemic. Developed in coordination with the Department of Health and Human Services (HHS), Guidance on Preparing Workplaces for an Influenza Pandemic provides general guidance for all types of workplaces, describes the differences between seasonal, avian, and pandemic influenza, and presents information on the nature of a potential pandemic, how the virus is likely to spread, and how exposure is likely to occur. More information on pandemic flu is available at the federal government's website for pandemic flu.
Julie Seaman (Emory) has been awarded the Society for Evolutionary Analysis in Law (SEAL) Junior Faculty Writing Prize for her article Form and (Dys)Function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title VII. In the article, Julie transposes the idea of architectural spandrels – used as a metaphor in biology – into a new metaphor to examine the architecture of anti-discrimination law, thus explaining sexual harassment law through the use of evolutionary biology.
Julie currently is working on an interdisciplinary project with the Emory Department of Psychology looking at race bias in juries using neuroimaging technology.
Tuesday, February 6, 2007
"That" in this context is going on a hunger strike (via FoxNews.com):
49, [pictured left] is known for his controversial theories about stem cells. He works
with adult stem cells and opposes research using human embryonic stem
cells, saying it amounts to taking human life. Sherley said he has tried unsuccessfully for two years to persuade MIT
administrators to reverse a decision by his department head to reject
his bid for tenure. He had warned school officials he would start the
hunger strike Feb. 5 outside the office of MIT provost L. Rafael Reif. He
stood outside Reif's office for several hours Monday morning,
accompanied by about 25 friends and supporters. He said he plans to
ingest only water, vitamins
and electrolyte supplements until MIT acknowledges racism played a role
in the tenure decision. He said he would spend three hours each morning
outside Reif's office, then continue his research work in his lab in
Sherley said he has tried unsuccessfully for two years to persuade MIT administrators to reverse a decision by his department head to reject his bid for tenure. He had warned school officials he would start the hunger strike Feb. 5 outside the office of MIT provost L. Rafael Reif.
He stood outside Reif's office for several hours Monday morning, accompanied by about 25 friends and supporters. He said he plans to ingest only water, vitamins and electrolyte supplements until MIT acknowledges racism played a role in the tenure decision. He said he would spend three hours each morning outside Reif's office, then continue his research work in his lab in the afternoons.
Anyone have a trenchant quip for this piece of academic brinkmanship? How about another quote, but this time from the 80's classic film "Airplane!":
Anyone have a trenchant quip for this piece of academic brinkmanship? How about another quote, but this time from the 80's classic film "Airplane!":
The Board has just reversed over ten years of precedent to conclude that it will not dismiss a decertification petition filed after allegedly unlawful conduct, but before a settlement agreement under which the employer does not admit that the conduct was unlawful. In Truserv Corp., 349 N.L.R.B. No. 23 (Jan. 31, 2007), the Board reinstated its previously overruled decision in Passavant Health Center, 278 NLRB 483 (1986), which generally refused to treatment a settlement agreement as an admission of wrongdoing and, therefore, did not require the dismissal of a decertification petition filed in between the conduct at issue and the settlement. In the Board's press release, it describes the 3-2 decision as follows:
[In reaching its conclusion that] a decertification petition filed after the occurrence of alleged unfair labor practices by the employer, and prior to settlement of those charges, should not be dismissed where there has been no finding or admission that the employer actually engaged in the allegedly wrongful conduct. . . . the Board overturned its prior decisions in Douglas-Randall, Inc., 320 NLRB 431 (1995), Liberty Fabrics, Inc., 327 NLRB 38, 39 (1998), and Supershuttle of Orange County, 330 NLRB 1016, 1018-1019 (2000). . . .
In reconsidering the Douglas-Randall decision and its progeny, . . . the Board concluded that, absent a finding of a violation of the Act, or an admission by the employer of such a violation, there is no basis for dismissing a petition based on a settlement of alleged but unproven unfair labor practices. To do so would unfairly give determinative weight to allegations of unlawful conduct and would be in derogation of employee rights under Section 7 of the Act.
In dissent, Members Liebman and Walsh . . . emphasize[d] that the Board’s task is to strike a balance between the establishment and maintenance of stable collective-bargaining relationships and employees’ freedom of choice in deciding whether they want to engage in collective bargaining and, if so, whom they wish to represent them. The dissent contends that the Board in Douglas-Randall and its progeny struck an appropriate balance between these interests, recognizing that the settlement of unfair labor practice allegations is a meaningful act, which bears consequences, and must be given due consideration when weighed against the right to choose whether to decertify a union.
Another sign of the times. Should there be a President Clinton or Obama in 2009, expect Douglas-Randall to rise again. In the meantime, unions' willingness to settle unfair labor practice charges in these situations will be nil unless employers are willing to admit guilt. Most people reading this have a pretty good idea of how infrequently employers would formally acknowledge an unfair labor practice--the result is far fewer settlements and more Board litigation. Maybe this is part of a Board conspiracy to keep their case numbers up to ward off budget cuts . . . .
Thanks to Steven Sholk for directing me to this important new decision by the Ninth Circuit just out, which allows a pay discrimination suit by some nearly 2 million women to proceed against Wal-Mart. The case is Dukes v. Wal-Mart, No. 04-16688 (9th Cir. Feb. 6, 2007).
Here is some of the details from the Wall Street Journal:
A federal appeals court today upheld the class-action status of a sex discrimination suit filed by six women employees against Wal-Mart Stores Inc., paving way for a jury to consider the largest-ever pay discrimination suit.
The 2-1 decision by a three-judge panel of the 9th Circuit Court of Appeals in San Francisco affirmed a lower court ruling that more than 1.5 million female Wal-Mart employees could join the suit alleging discrimination in pay and promotional opportunities.
Since the appeals court began hearing arguments a year and a half ago, the potential number of women eligible has climbed to about two million, raising the potential for multibillion dollars in damages claims if a jury were to find discrimination.
In its 40-page opinion, the panel's majority wrote "it would be better to handle this case as a class action instead of clogging the federal courts with innumerable individual suits." It also rejected Wal-Mart's arguments that class-action status would undermine its ability to defend the suit: "Although the size of the class action is large, mere size does not render a case unmanageable," the majority wrote.
In a eight-page dissenting opinion, Judge Andrew J. Kleinfeld argued the potential for several billion dollars in damages would force a settlement on any defendant. "The punitive damages claim poses a constitutional barrier to class certification."
You can bet your bottom dollar that there will be a petition for rehearing en banc, and eventually a cert. petition to the Supreme Court, based on the constitutional due process issues surrounding cases of this size.