February 17, 2007
San Francisco Providing Paid Sick Leave to Domestic Employees
Thanks to Daniel Mitchell (UCLA Management, Public Affairs) for posting this story on the LERA listserv concerning the impact of San Francisco's new paid sick leave law on domestic workers (via the San Francisco Chronicle):
San Francisco's new law requiring all employers to provide paid sick leave -- the first such law in the country -- has sparked hot debate among owners of conventional small businesses such as restaurants and retail shops.
But the law also applies to another group of employers who are hardly aware of it -- people who hire household help such as nannies, babysitters, house cleaners and elder care workers.
There are no reliable numbers for how many San Franciscans employ household help, partly because many people hire their nannies or cleaners off the books and don't file payroll tax forms for them.
The result of the informal, unregulated and off-the-books nature of household employment is that domestic workers often lack the basic workplace rights and benefits that other Americans take for granted.
As "relatively few San Francisco household
employers seem aware that the law applies to them," it will be interesting to see if the City is able to effectively enforce this law for a segment of the workforce which has historically not been able to secure such benefits. Perhaps it will take a few complaints being filed by domestic workers before household employers wake up and take notice of this paid sick leave law. PS
As "relatively few San Francisco household
employers seem aware that the law applies to them," it will be interesting to see if the City is able to effectively enforce this law for a segment of the workforce which has historically not been able to secure such benefits. Perhaps it will take a few complaints being filed by domestic workers before household employers wake up and take notice of this paid sick leave law.
Weil on Crafting a Progressive Workplace Regulatory Policy
David Weil (Boston Univ. Management, Harvard JFK Gov't) has posted on SSRN his paper entitled: Crafting a Progressive Workplace Regulatory Policy: Why Enforcement Matters.
Here is 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.
Sounds very interesting and it is always great to get new workplace law insights from non-law professors.
February 16, 2007
Paid FMLA Leave On The Way?
It might be according to this story from HR.BLR.com:
Senator Chris Dodd of Connecticut [left] says he will propose legislation that would give eligible employees at least 6 weeks of paid leave to care for themselves, their children, and immediate family members under the Family and Medical Leave Act (FMLA).
Dodd says his legislation would also expand the number of individuals eligible for FMLA leave. Dodd was the author of the FMLA, which was signed into law in 1993.****************************************************************************
Dodd says the cost of the paid-leave program would be shared by employers, employees, and the federal government.
The United States lags behind nearly every industrialized country in the world in not providing some form of paid-leave to employees and the current state of affairs exacerbates the challenge of balancing work and family life for many employees.
California recently became the first state to offer such a program, "allow[ing] most California workers to receive up to a 55 percent wage replacement benefit for 6 weeks in a 12-month period."
Under the current version of the FMLA, employers can either provide up to 12 weeks of qualified family and medical leave on an unpaid basis or force employees to use other types of accrued paid leave time, such as vacation or sick days, during their leave period.
Dell Facing Large Overtime Suit
Brent Hunsberger at The Oregonian At Work Blog brings news of a large overtime suit being filled against Dell Computers at one of their call centers in Roseburg, OR. Plaintiffs contends the Dell "worked its sales reps 'off the clock,' failed to provide proper rest breaks and improperly recorded their lunch periods."
Here are some more details about the suit:
[W]orkers allege in the lawsuit that they attended daily pre-shift meetings that ran two to 30 minutes long and spent time booting their computers and sorting through e-mails before officially clocking in for pay. They allege the federal Fair Labor Standards Act requires Dell to pay them overtime for those pre- and post-shift activities. They also allege that the company deducted an hour from their time cards for lunch even though they routinely spent only 30 to 45 minutes. And they say they didn't get rest breaks required by Oregon law. The lawsuit alleges Dell was told of some of the recordkeeping problems but failed to address it.
There is a developing trend with these type of lawsuits, and Brent mentions that similar suits at call centers have already been filed against T-Mobile USA, Cingular Wireless, ClientLogic Operating Corp. and American InterContinental University Online.
In addition, Wal-Mart has been hit with several major overtime verdicts recently, totaling over $250 million dollars, regarding federal and state violations of overtime and meal break laws in Pennsylvania and California.
February 15, 2007
Smith on Race-Based Conspiracies
Here are some excerpts from the abstract:
Most lawyers, judges, and members of the legal academy are well versed in the underlying rationales for criminal conspiracy law -- that punishing a conspiracy as a separate crime "protect[s] society from the dangers of concerted criminal activity" and the greater "threat to social order." While this "group dangers" rationale thrives in criminal conspiracy law, its absence from the interpretation of 42 U.S.C. § 1985(3) has led a majority of federal courts to apply a legal fiction from anti-trust law, the intracorporate conspiracy doctrine, that shields racist conspirators from § 1985(3) liability.
This article argues that federal courts should recognize the special dangers of race-based conspiracies, reject the intracorporate conspiracy doctrine as they have done in criminal law, and hold racist corporate officers liable for racially driven intracorporate conspiracies under § 1985(3).
This article's findings mandate a re-conceptualization of contemporary race-based civil conspiracy law so that corporate actors are held accountable for harnessing the power of collective action to engage in racial discrimination; the rejection of the intracorporate conspiracy doctrine's application to § 1985(3) claims is a critical reform.
Catherine presented this paper at the First Annual Colloquium on Current Scholarship in Labor & Employment Law at Marquette Law this past October. She makes some very good and thought-provoking arguments in an area of the law that employment types tend to forget about.
D.C. Considering Offenders' Rights Law
Here is an interesting story from yesterday's edition of Inside Higher Ed about how the local D.C. government is considering a bill that would make it illegal for universities and colleges in the District to consider the criminal background of ex-offenders when making employment decisions:
Legislation making its way through the city government in Washington runs contrary to broader national efforts among college leaders to rely on past offenses to predict potential problems and to more tightly control who gains access to an institution — its campus and its resources, and potentially even its students.
The ” Human Rights for Ex-Offenders Amendment Act of 2007” would, if approved, strictly limit the role that a person’s criminal background could play in employment, housing or enrollment decisions at 10 higher education institutions in the nation’s capital — much to the chagrin of local college leaders who fear yet one more level of regulation, and a loss of institutional discretion.
The D.C. bill — an earlier version of which was vetoed by the former mayor, but which now, newly introduced, enjoys the support of the city’s new mayor, Adrian Fenty — would amend the city’s Human Rights Act of 1977 to prohibit discrimination in the district based on arrest or conviction record, other than when a “rational relationship” between a position and a past conviction can be established. (Law enforcement, schools and other employers offering care for children or the elderly are among a select group of employers that would be exempt, but universities are not).
I understand the bill sponsor's concerns about being able to reintroduce offenders into society in a way in which they can rebuild their lives. But I wonder whether this bill balances appropriately the needs colleges and universities have in conducting criminal background checks to maintain the security of campus and to protect their students.
As the article points out, this is also an instance of the government interfering with the institutional academic freedom of a higher education institution. It would be interesting indeed if the colleges and universities filed a Section 1983 claim based on interference with their First Amendment rights to academic freedom. The scope of such a right is still up in the air and such a challenge could more precisely define the nature of what deference higher education institutions are owed when government seeks to protect through legislation the civil rights of a discrete group of individuals.
February 14, 2007
New Study: Sarbanes-Oxley Not Helping Employees
Update: Strengthening whistleblower protection laws is apparently on the mind of Congress, as this Washington Post article indicates that the House held hearings on Tuesday on how to make whistleblowing laws more effective for federal employees. Hat Tip: Elaine Mittleman.
Thanks to Bjorn Rohde-Liebenau, of RCC Risk Communications Concepts in Hamburg, Germany, who directed me to this interesting article in CFO.com about a study that indicates that, "[c]ontrary to its intentions, the Sarbanes-Oxley Act has discouraged employees from coming forward and blowing the whistle on corporate fraud."
Here are some excerpts from the article:
Despite the 2002 law's whistleblower protection provision, employees have been less likely to come forward with fraud concerns, according to the National Bureau of Economic Research, a non-profit research organization. From 1996 until Sarbox's enactment, employees made up 21 percent of fraud detectors. Since then, that number has dropped to 16 percent.
Luigi Zingales, who co-wrote the report, "Who Blows the Whistle on Corporate Fraud?" blames most of this decline on the fact that employees have little incentive to tell others they suspect a fraud has occurred. Indeed, they have considerable disincentives: in 82 percent of cases with named employees, the report found, the whistle-blower "alleged that they were fired, quit under duress, or had significantly altered responsibilities as a result of bringing the fraud to light." For the report, researchers looked over 230 alleged corporate fraud cases involving companies with at least $750 million in assets.
Interesting stuff. These findings appear consistent with some of the theoretical and empirical research that Richard Moberly (Nebraska) has been doing in this area and that he presented at the First Annual Colloquium on Current Scholarship in Labor & Employment Law at Marquette Law this past October.
D.C. Circuit: NLRB Has Jurisdiction Over Indian Casino
This a follow-up to a post we did a while back on whether or not the National Labor Relations Board (NLRB) has jurisdiction over Indian casinos controlled by sovereign Indian nations.
The D.C. Circuit, in the case of San Manuel Indian Bingo and Casino v. NLRB, 05-1392 (DC Cir. Feb. 9, 2007), has now answered that question in the affirmative.
Thanks to Ross Runkel and the Employment Law Memo for this summary:
The employer petitioned for review of the National Labor Relations Board's (NLRB) decision finding that the employer committed an unfair labor practice. The [D.C.] Circuit denied the petition for review and granted enforcement.
The issue was whether the National Labor Relations Act (NLRA) applied to the employer, an Indian tribe. The court first concluded that the NLRA did not impinge on the tribe's sovereignty enough to indicate a need to construe the statute narrowly against application to employment at the casino. The court also concluded that the NLRB's interpretation that the term "employer" in the NLRA encompassed Indian tribal governments was a permissible construction of the NLRA. The court stated that the NLRB could reasonably conclude that Congress's decision not to include an express exception for Indian tribes in the NLRA was because no such exception was intended or exists.
Not sure if this is the end of the road for this case, but I think we can expect similar issues to continue to percolate in other courts around the country.
BTW, I am the first to admit when I am wrong on a prediction and I was wrong on this one.
Comair, Pilots Reach Tentative Deal
Comair and its pilots reached a tentative agreement yesterday. Comair, which is in bankruptcy, had threatened to unilaterally impose significant pay cuts. The pilots had threatened to strike, until a federal judge issued an injunction forbidding any such strike. The details of the agreement haven't been released, and the agreement isn't final until the agreement is ratified by union members. The union is appealing the injunction, which effectively left it with no meaningful bargaining power.
For more, see Alexander Coolidge, Comair, pilots in tentative deal, Cincinnati Enquirer.
Suk: Job Security Can Be Discriminatory, Too
Julie Suk has posted on SSRN her article Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict. Here's the abstract:
The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at odds. This article challenges this piece of conventional wisdom by showing how job security protections can also exacerbate racial inequality in employment. It examines recent race riots and student protests against proposed labor law changes in France to unearth the tension between combating racial discrimination in hiring and protecting all employees' job security. Scholars and advocates of employment discrimination law should be aware of the ways in which both employment at will and job security protections can function in different contexts to exacerbate racial inequalities in employment. Such awareness should encourage the development of a broader perspective on equal employment opportunity that moves beyond the limited set of problems that are identified by the litigation of employment discrimination cases.
Barry on Not-Free Speech in the Workplace
Bruce Barry, Professor of Management and Sociology at the Vanderbilt B-School, has just posted on SSRN his article Limits to Freedom of Expression in the American Workplace: Implications and Remedies. Here's the abstract:
A combination of law, conventional economic wisdom, and accepted managerial practice has produced an American workplace where freedom of speech – that most crucial of civil liberties in a healthy democracy – is something individuals undertake after work, on their own time, and even then only if their employers approve. I argue that limits to freedom of expression in and around the workplace diminish not just individual rights as employees, but individual effectiveness as citizens—as participants in the civic conversations that make democracy work. With workplaces serving as key venues for shared experience and public discourse, workplace speech rights matter for advancing citizenship, community, and democracy in a free society. I comment on the legal status of expression at work in the U.S., develop an argument for freer speech on and off the job, and suggest legal and managerial reforms that would expand workplace freedom of expression.
February 13, 2007
To Give an Honest Reference or Not
The March issue of Kiplinger's Personal Finance magazine gives this advice to employers who are asked for a job reference concerning poor performing former employees:
In these litigious times, employment lawyers often advise against saying anything negative about a former employee, lest you be vulnerable to a defamation charge. They suggest that you confirm nothing more than dates of employment and job description. Although that's the safe thing to do, it leads to poor performers being passed along from one job to the next. I prefer to give a balanced account of the former employee's work, sticking to the facts -- and trusting in confidentiality. Wouldn't you appreciate this candor if you were the one making the hiring decision?
We would, of course, in an ideal world all appreciate candor when we seek job references, but exactly what is in it for the recommender? Indeed, how is the recommending employer hurt if a poor employee is "passed along from one job to the next"? Maybe in some tangential way, but the employer will have more to concern themselves if they give a "confidential" and "balanced account" and nevertheless find themselves saddled with a lawsuit.
I'm sorry folks, and maybe there still remains in me the old management-side attorney, but until the law changes to a degree where employers have more legal protection in giving honest evaluations (and some states have taken important steps in that direction), my advice is still name, rank, and serial number.
Sex in the Workplace
While there will never be a precise answer to that question, Time's Work in Progress blog points to a recent study by staffing company Randstad USA for some answers, at least as far as flirting and dating. Some of the more intriguing statistics:
• 37% of working adults have flirted with a colleague
• 8% currently have a secret crush at work
• 17% of working adults have secretly dated someone from work
And what form does eventual socializing take?: "Those in the South (41%) and Midwest (35%) like socializing with co-workers at company parties and Northeasterners favor dinner (37%) or happy hour (28%)."
February 12, 2007
29th Annual Labor History Conference
The Program Committee of the 29th annual North American Labor History Conference is soliciting proposals for sessions and papers on Global Connections and Unfree Labor. The Conference will be held October 18-20, 2007, at Wayne State. Here's a description:
The challenges and changes presented by globalization have represented a visible and pressing issue for workers over the past several decades. However, the development of a global trade and labor network dates back centuries and has often depended on the contributions of unfree labor – slaves, indentured servants, impressed sailors, serfs. This year's conference wishes to explore the issue of unfree labor in the global economic system both as a historical phenomenon and as an element of our increasingly international economic environment.
The Program Committee encourages the use of differing session formats (workshops, roundtable discussions, and multimedia as well as traditional panels), and sessions that address the theme from perspectives of gender, race, ethnicity, and sexuality.
Thanks to John Bickers for the heads-up.
February 11, 2007
Cupid Loose in the Workplace
In Valentine's Day-related news, have to say that I was somewhat surprised to see the number of employers who still have not bothered to put into place some workplace dating policies. Lisa Takeuchi Cullen at Time's Work in Progress blog cites outplacement firm Challenger, Gray & Christmas for the proposition that 1/3 of all employers have no such policies.
CEO of CGC John Challenger seems to have it pegged when he writes:
[M]ost companies would benefit by spelling out the rules of workplace romance. It would be foolhardy to completely outlaw all romantic associations between co-workers, but companies can prohibit such relationships between supervisors and their subordinates.
As good of advice as that seems, only 45% of companies prohibit supervisor-subordinate romantic relationships and not surprisingly, it is many of today's relationships of this type that turn into tomorrow's sexual harassment complaint.
Lisa's advice: "Here's the workplace romance policy I'd advocate: don't ask, don't tell, and for the love of Pete don't practice PDA among your colleagues."
Amen to that.
A BFOQ Issue at the Intersection of Religion and Gender Expression
Update (3/14): The parties have settled their dispute through EEOC mediation, but Nemecek is no longer employed by the college.
Thanks to Jillian Weiss for directing me to this post on Transgender Workplace Diversity about the recent firing of a professor from a Christian Michigan college for being a transgender individual.
Here are some excerpts from that post:
From Michigan comes the story of Professor Julie Marie Nemecek, who has been fired from her university post as assistant dean of adult studies and Associate Professor at Spring Arbor University. The University is firing the professor because she is transitioning from male to female. She has filed a complaint with the EEOC.
In response to the EEOC complaint, the university cites its Bona Fide Occupational Qualification (BFOQ) that legally allows hiring only Christian employees. "We expect our faculty to model Christian character as an example for our students," read a university statement issued by a public-relations firm. Faculty who "persist with activities that are inconsistent with the Christian faith" are subject to firing. College officials said the Christian mandate is critical to the university and is protected by state and federal civil-rights laws.
There are at least three Title VII issues here: (1) Does Spring Arbor University qualify for one of the two religious exemptions under Title VII, (2) if not, is Professor Nemecek being discriminated against based on one of the proscribed categories under Title VII, and (3) if so, can the school base its sexually discriminatory policy on not employing transgender employees on a religious bona fide occupational qualification (bfoq)? (There is also a potential First Amendment expressive association argument that to interpret Title VII to require the college to have to reinstate the professor as an employee member violates the college's constitutional associational rights. Although some have argued for this type of interpretation in court briefs and academic commentary, it does not appear to have been followed by any court yet and so will be set to one side for the time being).
As far as the first issue, the fact that the school is relying on the bfoq defense suggests that they don't even think they will be able to rely on one of the religious exemptions. As to the type of discrimination at issue, although it is far from clear that discrimination against a transgender employee is tantamount to sex discrimination in all courts in the United States, at least prior 6th Circuit precedent (the circuit in which Michigan is located) has so held.
Finally on the bfoq issue, religious-based hiring would have to be reasonably necessary to the normal operation of the particular business. In other words, what is the essence or the mission of Spring Arbor: is it education generally or is it a certain type of Christian education which does not tolerate transgender employees? If the former, no bfoq and the employee wins; the latter, a bfoq finding would shield the employer from liability.
In the end, this is going to be a fact-sensitive case. On the one hand, Spring Arbor describes itself as having a "total commitment to Jesus Christ as its perspective for learning." On the other hand, according to Jillian's post, the school "admits students of any faith, not all of its faculty is Christian, and it is a recipient of state and federal funds that prevent discrimination based on gender."
One of the interesting questions in these bfoq cases is how much deference the court should give to an employer's belief about its own essence or mission. The answer to that question in this case will likely turn out to be determinative in this case.
Lewis & Eaton on Rule 68 Offers of Judgment
Harold Lewis (Mercer) (left) and Thomas Eaton (Georgia) (right) have posted on SSRN their article: Rule 68 Offers of Judgment: The Practices and Opinions of Experienced Civil Rights and Employment Discrimination Attorneys.
Here's the abstract:
We were interested in learning why Rule 68 is not a more prominent feature of civil rights and employment discrimination litigation. Why is it not used more frequently in the very types of cases in which defendants have the greatest economic incentive to make offers and plaintiffs have the most to lose if they refuse them? We harbor no illusion that Rule 68 is a panacea for dispute resolution. But it is one tool for ratcheting up the pressures for an early settlement with a measure of legal compulsion. Our interest in Rule 68 is not driven by the belief that too many cases go to trial. Indeed, it appears that the civil trial has become a notable rarity - by one respected account, more than 98% of federal civil litigation is resolved by means other than trials. Nevertheless, Rule 68 may harbor the potential to speed up the settlement process and thereby produce significant economic savings to the parties, with correlative savings to the courts and the taxpayers who fund them.
Our contribution to the policy discussion is to report the views of experienced practicing attorneys who decide on a daily basis whether to make or accept offers of judgment. We conducted in-person, in-depth interviews with sixty-four experienced litigators who prosecute and defend civil rights and employment discrimination claims. This is the first such nationwide empirical inquiry into the incidence of practitioner use of Rule 68 in the federal fee-authorization cases where, after Marek, one would expect its use to be most common.
Part II describes the methodology we used in constructing this study. Part III discusses the technical aspects of Rule 68 and how they might contribute to use or non-use of offers of judgment. Part IV confirms the anecdotal evidence that Rule 68 plays little role in civil rights or employment discrimination litigation throughout most of the nation's federal courts. However, there are a few districts where Rule 68 has become a more than occasional part of evaluating and processing civil rights, although not employment discrimination, cases. Part IV also summarizes the primary reasons advanced by experienced attorneys for the infrequent use of Rule 68. Part V reports on the reactions of these attorneys to various proposals for reform.
This empirical study is a wonderful follow-up to a very informative symposium that was held at Mercer last year on the use of Rule 68. An under-utilized tool of litigation practice, I am very much looking forward to their findings.
Top-5 Employment SSRN Downloads
- Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (96).
- Oliver Hart & John Moore, Contracts as Reference Points (79).
- Christopher J. Kippley & Richard A. Bales (photo above), Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (70).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (68).
- Diane Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (66).
Top-5 Labor SSRN Downloads
- 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 (66).
- Cass R. Sunstein, Cost-Benefit Analysis Without Analyzing Costs of Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms (31).
- Mitchell H. Rubinstein, Attorney Labor Unions (26).
- David G. Blanchflower (left), Alex Bryson (center), & John Forth (right), Workplace Industrial Relations in Britain, 1980-2004 (22).
Corrada on Title VII Religion Cases
Roberto Corrada has posted on SSRN his article The Interrelationship of Discrimination and Accommodation in Title VII Religion Cases. Here's the abstract:
Since 1972 virtually all courts have treated religion claims as either disparate treatment or accommodation cases. Treatises and books also generally tend to treat the claims as separate. Very seldom do courts or scholars talk about the confluence of the two. What happens, though, if an accommodation case is suffused with bias or even hostility to the religious objector? Does the case follow the traditional bias framework or does it follow the accommodation framework or does it follow both? At least one employer has argued in the course of litigation that the accommodation framework trumps the bias framework in such cases. One federal court has taken this approach as well. Therefore, regardless of any bias, the relevant issues in the case should involve only reasonable accommodation and undue hardship. The implications of this approach are disturbing in that issues of bias involve determinations of credibility by a jury whose findings are heavily deferred to by judges or appellate courts while issues of accommodation are more technical, rational, and legal in nature, often resulting in more judicial involvement both at the summary judgment and appellate stages.
This article will explore the interrelationship between accommodation and discrimination in Title VII religion cases. The article will analyze the legislative history and the EEOC regulations surrounding the religion discrimination provision passed in 1964 and the accommodation amendment enacted in 1972 to glean congressional and administrative agency thinking about the two claims. The piece then will analyze the relationship in the context of two federal circuit court cases where the line between discrimination and accommodation became substantially blurred. Finally, the article will argue that the disparate treatment/bias framework should trump the accommodation framework when evidence of bias is present because the accommodation framework implicitly assumes employer neutrality as a starting point for any discussion of accommodation. The article maintains that in cases where the employer is not neutral on the issue of religious belief or practice, the employer cannot benefit from the defenses and arguments available to it in accommodation cases. In addition, the article will propose that in accommodation cases involving direct evidence of bias but not enough so that disparate treatment can be proved, the employer should not be allowed to defend on the grounds of undue hardship either.