Saturday, March 3, 2007
Thanks to Sam Bagenstos at the Disability Law Blog for bringing to my attention a new Questions and Answers document issued by the EEOC on Health Care Workers and the Americans with Disabilities Act (ADA).
From the introduction of this Guidance:
Health care is the largest industry in the American economy, and has a high incidence of occupational injury and illness. Though they are “committed to promoting health through treatment and care for the sick and injured, health care workers, ironically, confront perhaps a greater range of significant workplace hazards than workers in any other sector.” Health care jobs often involve potential exposure to airborne and bloodborne infectious disease, sharps injuries, and other dangers; many health care jobs can also be physically demanding and mentally stressful. Moreover, health care workers with occupational or non-occupational illness or injury may face unique challenges because of societal misperceptions that qualified health care providers must themselves be free from any physical or mental impairment.
Although the rules under Title I of the ADA and Section 501 of the Rehabilitation Act are the same for all industries and work settings, this fact sheet explains how the ADA might apply to particular situations involving job applicants and employees in the health care field. Topics discussed include:
- when someone is an “employee” covered by the ADA (as opposed to an independent contractor);
- when someone is an "individual with a disability" under the ADA;
- how to determine if a health care applicant or employee with a disability is qualified for ADA purposes;
- what types of reasonable accommodations health care workers with disabilities may need and the limitations on a health care employer’s obligation to provide reasonable accommodation;
- when an employer may ask health care applicants or employees questions about their medical conditions or require medical examinations; and
- how a health care employer should handle safety concerns about applicants and employees.
The document is long and detailed and contains 19 questions and 33 examples. Clearly, a must-read for those who practice in the area of disability discrimination law in the health care setting.
10th Circuit on the Intersection of Employment Eligibility Verifications and National Origin Discrimination
Thanks to Decision of the Day for summarizing this interesting en banc decision, Zamora v. Elite Logistics, Inc., 04-3205 (10th Cir. Feb. 26, 2007), from the 10th Circuit concerning the tension between verifying the legality a worker under the I-9 process (established by the Immigration Reform and Control Act (IRCA)) and national origin discrimination under Title VII,
Here are some excerpts from that post:
Plaintiff Ramon Zamora is a Mexican national who is legally present in the United States. He claims that his employer, Elite Logistics, twice discriminated against him based on race and national origin. First, Elite suspended him pending double and then triple proof that he was using a real social security number. Second, Elite fired Zamora when he demanded an apology.
By a vote of 9-5, the Court rejects Zamora’s wrongful termination claim. Although the Court evenly divides on Zamora’s claim that he was wrongfully suspended, that too fails, since an even division means that the district court decision will stand.
Clearly, the court was sharply divided on both what motivated the employer to suspend and terminate the employee. The opinion is long and complex and merits close reading.
Interestingly, Supreme Court case law stands for the proposition that citizenship discrimination does not equate with national origin discrimination under Title VII (Farah Mfg.), but IRCA has separate provisions that protects against citizenship discrimination against legally present aliens. Even though the dissent mentions these provisions, it does not appear that Zamora brought a separate claim under IRCA.
Update (3/6): The Senate has now passed the antierror bill allowing airport screeners to unionize. The amendment to allow unionization may be still removed during reconciliation of the House and Senate versions of the antiterror bill, but if not, the Senate vote was not by a large enough margin to veto-proof the legislation.
How strongly does the Bush Administration feel about not giving collective bargaining rights to airport screeners?
Well, we wrote last month about how the House had past a billed which would provide such rights to TSA workers by a 299-128 margin. Now comes word that if the Senate should send the provision, which is part of an antiterror bill, to the President, a veto awaits it:
President Bush and his Senate allies will kill a Sept. 11 antiterror bill if Congress sends it to the White House with a provision to let airport screeners unionize, the White House and 36 Republicans said Tuesday.
"As the legislation currently stands, the president's senior advisers would recommend that he veto the bill," said White House spokesman Scott Stanzel.
Senate Republicans swiftly backed up the threat with a pledge by more than enough senators to block any veto override attempt.
Of course, this administration is no stranger to fights over federal workers' bargaining rights, and as with the other battles (and even though TSA workers are not technically federal employees), the line the administration is taking is that giving such rights could impede a quick response to possible terror threats.
Let me put the question to you this way: is the country more in danger because of the possibility of unionized airport screeners (which may or may not happen even if the provision becomes law) or because other provisions, including recommendations from the 9/11 commission, will be scrapped as a result of the President's veto?
Like the American Federation of Government Employees, I think the Administration's position is "an insult to the hundreds of thousands of dedicated public safety officers with collective bargaining rights — from border patrol agents to firefighters to the Capitol Hill police."
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky Directors (547).
- Lucian Arye Bebchuk, Martijn Cramers, & Urs Peyer, Pay Distribution in the Top Executive Team (205).
- Annamaria Lusardi & Olivia S. Mitchell, Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (130).
- Clark C. Havighurst & Barak D. Richman, Distributive Injustice(s) in American Health Care (109).
- Joshua D. Rauh (photo above), Risk Shifting versus Risk Management: Investment Policy in Corporate Pension Plans (83).
- David Kinley & Rachel Chambers, The UN Human Rights Norms for Corporations: The Private Implications of Public International Law (80).
- Symeon C. Symeonides, Choice of Law in the American Courts in 2006: Twentieth Annual Survey (76).
- Harry W. Arthurs, Compared to What? The UCLA Comparative Labor Law Project and the Future of Comparative Labor Law (28).
- Holger M. Mueller & Thomas Philippon, Family Firms, Paternalism, and Labor Relations (16).
- Sangheon Lee & Deirdre McCann, Measuring Working Time Laws: Texts, Observance, and Effective Regulation (16).
Peter Lattman over at the WSJ Law Blog has the 411 on this developing trend:
Lawyers say employment lawsuits against hedge funds are on the rise. “Ten years ago, there were virtually no hedge-fund employment lawsuits; five years ago, there were a few,” says Jeffrey Liddle, managing partner at Liddle Robinson in New York. “Today, once a week we get a call.”
The growth reflects a new reality of the hedge-fund world: These lightly regulated investment pools that once served as a haven for traders frustrated with Wall Street bureaucracy have themselves burgeoned into large, deep-pocketed institutions. And their employees’ expectations have changed. “In the old days,” says Schulte Roth partner Paul Roth, a hedge-fund boss “could come in and say, ‘You’re gone.’ Now [employees] will ask, ‘What do you mean? You can’t fire me!’”
Peter refers to a story in the main Journal that suggests that hedge-funds are fighting back.
That may be the case, but that just means they are like any other large, deep-pocketed corporation that is increasingly facing employment discrimination and other types of employment suits in this litigious environment.
I think the more interesting angle with hedge-funds and the employment law world is in the area of employee benefits where benefit plan administrators are increasingly relying on these sometimes risky investment vehicles for their employees' retirement benefits. The number of breach of fiduciary duty claims in this area are continuing to increase.
Susan Mangerio over at Pension Risk Matters has done a great job documenting this phenomenon on her blog for the last year or so.
Friday, March 2, 2007
Last Friday, The Conference Board reported on its new study of job satisfaction in America. (I don't see the full report on its Web site, but a press release giving more detail is available here.) Among the study's findings: Slightly less than half of workers surveyed were satisfied with their jobs overall, and only 36 percent were satisfied with their wages.
Interestingly, worker satisfaction increased with hours worked per week -- at least from a workweek of 40 hours through one of 59 hours. Job satisfaction began to drop at a workweek of 60 or more hours, though.
It seems like if people really like their jobs and derive satisfaction from them, they are willing to put those extra hours in to do the best job possible. That being said, there does come a time when endurance and stamina give way and sheer exhaustion takes over.
Been there, done that.
Thanks to Richard Moberly (Nebraska) for bringing to my attention a new blog about whistleblowing under Sarbanes-Oxley, The Race to the Bottom. The blog was started recently by Jay Brown at the University of
Richard has a post there on SOX and Whistleblowing: The Concerns, in which he writes:
[In yesterday’s blog], I reviewed the Whistleblowing provisions in SOX. Whether these provisions actually will reduce corporate fraud remains to be seen. Despite the Act’s strong anti-retaliation protections, during the first three years of SOX few whistleblowers actually won retaliation claims. In a recent study I completed of whistleblower claims (a draft can be found here ), only 3.6% of employees won relief through the initial administrative process that adjudicates SOX claims, and only 6.5% of whistleblowers won appeals through the process.
Richard piece, that he refers to above, is entitled: Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win.
I heard Richard present this piece at the Colloquium at Marquette Law this past October and it is an excellent, original piece on this highly relevant area of the law.
Also, check out the Race to the Bottom Blog for other interesting insights from different authors on SOX and whistleblowing.
The University of St. Thomas Law Journal will host its spring symposium, "Workplace Restructuring to Accommodate Family Life," from 8;30 a.m. to 4:30 p.m. Friday, March 16, at the School of Law. The keynote speakers are Sr. Mary Prudence Allen (left) on Analogy, Law, and the Workplace: Complimentarity, Conscience, and the Common Good; and Joan Williams (right) on Opt Out or Pushed Out: The Real Story of Women and Work.
The event will involve dialogue across philosophical and faith traditions on workplace and family issues, including gender roles, caretaking, family wage and immigration.
The symposium will be held March 16. Registration is required.
Thursday, March 1, 2007
Democrats rewarded organized labor Thursday for helping them retake control of Congress, approving a House bill that would make it easier to start unions against companies' wishes.
The legislation, approved 241-185 on a nearly party-line vote, would take away the right of employers to demand secret-ballot elections by workers before unions could be recognized.
This is a great achievement for the labor movement, but one that is likely to be short-lived.
Given the party-line nature of the vote, I would think that a Senate filibuster by Republicans is a done deal and one that will ultimately prevail in the end. Of course, even if the bill does pass the Senate, President Bush will veto the legislation.
Hat Tip: Michael Fischl
Margaret Johnson (Baltimore) has posted on the bepress Legal Repository her new article: "Avoiding Harm Otherwise": Reframing Women Employees' Responses to the Harms of Sexual Harassment.
Here's the abstract:
This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law’s interest in employee’s harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms.
This article reframes the legal discussion of an employee’s actions in response to sexual harassment from one that almost exclusively focuses on whether the employee failed to report the sexual harassment. To assist in the reconceptualization, this article explores women employees’ responses to sexual harassment: the ways in which they are harmed by sexual harassment, beyond the act of sexual harassment itself, and the ways in which they avoid that harm, beyond simply reporting the sexual harassment. There are at least two benefits from this reframing. First, a more inclusive depiction of women employees’ injuries from and responses to sexual harassment would far better inform sexual harassment liability determinations. As a result, the determinations can fulfill the legislative intent of Title VII of the Civil Rights Act of 1964 to encourage and reinforce employees’ efforts to “avoid harm.” Second, through this process, there is an opportunity to reveal the existing reality that highlights women’s partial agency but often is obscured with the dominant picture of a sexual harassment victim as “suffering in silence.”
Margaret presented this thought-provoking piece at the First Annual Colloquium on Current Scholarship in Labor and Employment Law at Marquette Law in October. The paper provides a unique perspective on this important area of sexual harassment law. Give it a read!
Update (3/11): Thanks to Jillian Weiss for providing this update. Apparently, Stanton is planning to appeal his firing to the City Commission.
Steve Stanton, City Manager of Largo, Florida, is about to lose his job because he announced that he is a transsexual and will undergo a sex change operation. The three-step firing process began Tuesday with a resolution to fire from the City Commission. For the latest, see CNN.com. Hat tip: Davida Isaacs.
Wednesday, February 28, 2007
Alvin Lurie writes to tell us that he will be the general editor of a forthcoming publication of a new treatise on the federal income taxation of pensions and other "qualified" or nonqualified retirement arrangements, by a major legal publisher, shooting for publication in late 2007. Alvin was the first appointee as Ass't Com'r of Internal Revenue in charge of Employee Benefits & Exempt Orgs following enactment of ERISA and now he is in private tax pracice in his own firm in Larchmont NY, and of counsel to the Wagner Law Group in Boston.
As the desired contents of individual chapters are now actively under development, any blog readers interested in being considered for authorship should contact him at firstname.lastname@example.org, or by mail at 13 Country Club Drive, Larchmont NY 10538, with a topic(s) on which they are prepared to write, for an audience that will include all practitioners (whether or not tax specialists) engaged in representing or advising plan sponsors.
Alvin also directs us to a new piece that he has written, "Center of Gravity Shifts to 3rd Circuit," on recent favorable to plan sponsor cash balance plan decisions which can be accessed here.
Prof. Matt Bodie (currently at Hofstra, but moving to Univ. of St. Louis), has an excellent post on the Employee Free Choice Act (EFCA) over at PrawfsBlawg. The EFCA, of course, would require the NLRB to certify a union that obtained authorizations cards from a majority of employees, much like Canada does. However, this "card check" recognition is controversial. Indeed, one of the last legislative acts by Charlie Norwood (R-Ga.) before he died was to propose the Secret-Ballot Protection Act, which would prohibit an employer from voluntarily recognizing a union based on a card check. BNA's Daily Labor Report has an article (subscription required) today indicating that the legislative battle over EFCA will come down to whether Congress can override a presidential veto, so stay tuned.
As Matt notes in his post, the argument for the EFCA is to minimize the coercive nature of an election campaign, although he acknowledges that it would deprive employees some information about the costs of unionization. I'm generally in favor of EFCA, although I recognize that implementing the bill by itself has some problems. I'm not sympathetic to employer objections, however, because the law is currently titled heavily in their favor. Therefore, my ideal would be to include card-check recognition as part of a broader reform package that would strengthen penalties for campaign misconduct, while also making it somewhat easier for employees to decertify a union (as a former student of Sam Estreicher at NYU, I've often heard the mantra "easy-in/easy-out or hard-in/hard-out"). Of course, any significant modification of the NLRA is unlikely--I'd bet against the EFCA becoming law--much less a comprehensive change.
The Wall Street Journal reports on a new trend: replacing the office chair with a fitness ball. The idea is to strengthen the trunk muscles instead of slouching in a chair. The rub: work up to an 8-hour day gradually, or risk a slip and fall. A compromise: use a "ball chair" (pictured above) instead of a mobile fitness ball.
For more, see Anjali Athavaley, The Ball's in Your Cubicle: New Trend Replaces Office Chairs.
Tuesday, February 27, 2007
Dana Nguyen sends along this interesting article from the New York Times about how women are organizing at the grassroots level to protest and change unfair workplace flexibility policies to finally break through the glass ceiling:
The mothers all held jobs outside the home (pastry chef, singer in a band, lawyer, hairstylist, nanny) and many had flexible schedules to make it easier to care for their children. Like hundreds of others who have gathered over the last nine months, they huddled around a television to view “The Motherhood Manifesto,” a documentary about the obstacles still facing working mothers, including many of those in the room.
“These are issues I’m aware of and feel strongly about,” [Ms. Clark] said of the movie’s focus on subjects like universal child care, maternity and paternity leave, and workplace discrimination against mothers. That is why she joined MomsRising.org, the mother’s advocacy organization that made the documentary. “It’s a great opportunity to connect with friends — mothers — and together have a chance to change things,” she said.
It is not a coincidence that MomsRising is using the tactics of MoveOn.org, the influential liberal organizing site that helped propel Howard Dean’s presidential candidacy. One of the group’s founders is Joan Blades, who, with her husband, Wes Boyd, founded MoveOn.
MomsRising is the newest and most prominent in a loose coalition of advocacy groups, including Mothers & More, the Mothers Movement Online, Mothers Ought to Have Equal Rights and the National Association of Mothers’ Centers, that are sharing information, joining together at rallies and signing one another’s petitions.
Read the rest of this article. This movement is achieving some important milestones, but there is still,of course, much to be accomplished in the area of work-family balance.
University of Pennsylvania Journal of Labor and Employment Law
Volume 9, Number 1, Fall 2006
- Michael W. Hawkins (left)& Shawn P. Burton (second), Oakwood Healthcare Inc., 348 N.L.R.B. No. 37 (2006): How Textualism Saved the Supervisory Exemption, p. 1.
- Jarod S. Gonzalez (third), SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials, p. 25.
- Jonathan M. Gutoff (fourth), Fugitive Slaves and Ship-Jumping Sailors: The Enforcement and Survival of Coerced Labor, p. 87.
- Yoram Margalioth (right), The Case Against Tipping, p. 117.
- Mitchell H. Rubinstein, Our Nation’s Forgotten Workers: The Unprotected Volunteers, p. 147.
- Jennifer Gonzales-Frisbie, Personality Tests in Jeopardy: An Evaluation of the Seventh Circuit’s Decision in Karraker v. Rent-A-Center and its Impact on the Future Use of Personality Tests in Pre-Employment Screening, p. 185.
- Michael R. Mattioli, The Impact of Open Source on Pre-Invention Assignment Contracts, p. 207.
Thanks to my student, Drew Wheeler, for sending me this article from The Hollywood Reporter regarding impending labor troubles in the film and TV industry:
The high risk of a "real or de facto" strike by Hollywood unions means film industry employment could drop substantially in 2008, according to a new forecast by a regional economic group.
The Los Angeles County Economic Development Corp. report, set for release today, covers an array of regional business sectors but spotlights entertainment as a primary trouble spot.
"As to the industries at risk, the most notable is the motion picture/TV production industry, which has to face contract negotiations with three key labor unions (beginning with) the Writers Guild in October," the LAEDC said.
The article points out that already, "talent on hit TV shows are being asked to make themselves available to film extra episodes to stockpile in case writers go out on strike in the fall. And the current pilot season is tilting toward more reality, or 'unscripted,' programming."
Now, I'm not one to support the use of Taft-Hartley emergency presidential powers to enjoin strikes, but if it means not being subjected to more reality TV shows, I'm all for it.
Monday, February 26, 2007
- Jennifer Ann Drobac (photo above), I Can't to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas, 70 Albany L. Rev. 675 (2007).
Comments & Notes
- Charles Thomas Little, Transsexuals and the Family Medical Leave Act, 24 John Marshall J. Computer & Information L. 315 (2006).
- Andrew King, HIPAA: Its Impact on Ex Parte Disclosures with an Adverse Party's Treating Physician, 34 Cap. U. L. Rev. 775 (2006).
Tim Glynn (Seton Hall) and Charlie Sullivan (Seton Hall) write to tell us about a call for papers for Seton Hall's Second Annual Employment and Labor Law Scholars' Forum, which will take place on October 19-20, 2007.
Here are the details:
Building on last year’s success the Seton Hall Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while assisting more experienced scholars to understand and appreciate new scholarly currents.
Four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
As occurred last year, leading senior scholars will be invited to provide comments on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.
Papers proposals from junior scholars are due April 15, 2007, and should be 3-5 pages in length. Completed proposals should be submitted to Charlie Sullivan.
Selected papers must be available in draft form to be circulated to other forum participants by August 31, 2007.