April 5, 2008
Top-5 Employment SSRN Downloads
- Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men, and Responsibility (167).
- Alex B. Long, Retaliatory Discharge and the Ethical Rules Governing Attorneys (65).
- Martin Gelter (photo above), The Dark Side of Shareholder Influence: Toward a Holdup Theory of Stakeholders in Comparative Corporate Governance (65).
- Verna L. Williams & Kristin Kalsem, Social Justice Feminism (64).
- Jonathan Barry Forman, Making Our Work Work (62).
Top-5 Labor SSRN Downloads
- David J. Doorey, Harry and the Steelworker (or Teaching Labor Law to Non-Law Students) (82).
- Jennifer Dillard & Joel F. Dillard, Fetishizing the Electoral Process: The NLRB's Problematic Embrace of Electoral Formalism (74).
- Raja Raghunath, Stacking the Deck: Privileging "Employer Free Choice" over Industrial Democracy in the Card Check Debate (64).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (60).
- Sara Slinn (photo above), No Right (to Organize) Without a Remedy: Evidence and Consequences of Failure to Provide Compensatory Remedies for Unfair Labour Practices in British Columbia (50).
Top-5 International Employment & Labor Law SSRN Downloads
- Heike Schweitzer, Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (42).
- Marie-Ange Moreau (photo above), European Solidarity and Labour Law: Some Thoughts Stemming from the Question of Restructuring in Europe (15).
- Shruti Tripathi, Child Labor as an Institution in India (13).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Richard L. Kaplan, Top Ten Myths of Social Security (279).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (141).
- Martin Lipton, Some Thoughts for Boards of Directors in 2008 (126).
- Jesse M. Fried, Hands-Off Options (109).
- David A. Hyman (photo above), Health Insurance: Market Failure or Government Failure? (96).
April 4, 2008
Dannin: Who's an Employee Under the NLRA?
Ellen Dannin (Penn St.) has just posted on SSRN her article Not a Limited, Confined, or Private Matter -- Who Is an Employee under the National Labor Relations Act. Here's the abstract:
Congress defined employee under the National Labor Relations Act to say that an employee is any employee and is not limited to employees of a single employer. It was the intent of Congress that worker rights and labor organizing was to extend beyond the scope of a single employer, because only in this way could the bargaining power of employers and employees be equalized. Only protections based on such a broad definition could permit employees to overcome the inequality of bargaining power that was created by corporation law.
The courts, however, have not only not enforced the plain meaning of the statute nor the intent of Congress, they have gone so far in some cases as to define employee as limited to the employees of a single employer. The common law system of judicial decision-making means that judges continue to veer farther away from the rights Congress intended to provide employees. This article explores that legislative history and current cases pending decision in which the question of the definition of employee is critical to the outcome.
I'm looking forward to reading this just as soon as I return from Seattle.
Greetings from Seattle ...
... where I'm attending the ABA ADR Section Annual Spring Conference. This afternoon, Sarah Cole (Ohio State), Chris Drahozal (Kansas) and I will discuss recent Supreme Court cases and cert grants related to ADR. Yesterday, I had the good fortune to hear Lela Love (Cardozo), Jean Sternlight (UNLV), and Steve Ware (Kansas) discuss Justice and Dispute Resolution, and in just a moment I'll be hearing Elizabeth Ford (Seattle) and others discuss employment mediation.
Employment Situation Bleak in United States
No better proof of that than this March report released today from the Bureau of Labor Statistics (BLS):
The unemployment rate rose from 4.8 to 5.1 percent in March, and nonfarm payroll employment continued to trend down (-80,000), the Bureau of Labor Statistics of the U.S. Department of Labor reported today. Over the past 3 months, payroll employment has declined by 232,000. In March, employment continued to fall in construction, manufacturing, and employment services, while health care, food services, and mining added jobs. Average hourly earnings rose by 5 cents, or 0.3 percent, over the month . . . .
The number of unemployed persons increased by 434,000 to 7.8 million in March, and the unemployment rate rose by 0.3 percentage point to 5.1 percent. Since March 2007, the number of unemployed persons has increased by 1.1 million, and the unemployment rate has risen by 0.7 percentage point.
Over the month, unemployment rates rose for adult men (to 4.6 percent), adult women (4.6 percent), and Hispanics (6.9 percent). The jobless rates edged up for blacks (to 9.0 percent) and whites (4.5 percent), while the rate for teenagers (15.8 percent) was essentially unchanged. The unemployment rate for Asians was 3.6 percent, not seasonally adjusted.
In March, the number of persons unemployed because they lost jobs increased by 300,000 to 4.2 million. Over the past 12 months, the number of unemployed job losers has increased by 914,000 . . . .
The number of persons who worked part time for economic reasons, at 4.9 million in March, was little changed over the month, but has risen by 629,000 over the past 12 months. This category includes persons who indicated that they were working part time because their hours had been cut back or because they were unable to find full-time jobs.
In a word: Ouch.
Senator Kennedy Enters ENDA Fray
Sen. Edward M. Kennedy is jumping into the middle of an uproar within the gay community whose causes he has long championed.
The Massachusetts Democrat is leading a push in the Senate for a federal ban on job bias against gays, lesbians and bisexuals — but not transsexuals, cross-dressers and others whose outward appearance doesn't match their gender at birth.
"We will strongly oppose it," said Roberta Sklar of the National Gay and Lesbian Task Force. "Leaving transgender people out makes that a flawed movement."
The House in November approved the bill, written by openly gay Rep. Barney Frank, D-Mass., despite strong protests from many gay rights advocates that it didn't cover transgender workers.
"It was made very clear in the fall that most LGBT (lesbian, gay, bisexual and transgender) organizations, the vast majority of LGBT organizations, do not want Congress to shove a civil rights bill down our throat that we don't want," said Mara Keisling, executive director of the National Center for Transgender Equality.
Some gay rights groups, including the Human Rights Campaign, supported Frank's bill and the decision not to risk its rejection by Congress by insisting on immediate transgender protections as well.
"We will continue this work until all members of our community no longer fear being fired for who they are," said Brad Luna, Human Rights Campaign communications director.
Kennedy said Senate approval of the bill could pave the way for extending protections to transgender workers next year, when he hopes Democrats will increase their numbers in Congress and a Democratic president supporting gay rights will be in the White House.
We, of course, have discussed passing the ENDA bill without the "T" before, and I am now more persuaded that there is too much current litigation over whether transgender individuals are covered by existing definitions of "sex" under Title VII to allow the current situation to fester.
Assuming, like I do, that gender identity and expression is about sexual identity, Congress should make clear once and for all, like it did with pregnancy back in 1978, that "sex" under Title VII also includes individuals who have a different gender identity or expression than their anatomical sex. Let's not leave it to the courts to fool around with.
Robinson on Perceptual Segregation
Here's the abstract:
This Article argues that outsiders and insiders tend to perceive allegations of discrimination through fundamentally different psychological frameworks. These previously unrecognized differences have profound legal consequences. A workplace may be spatially integrated and yet employees who work side by side may perceive an allegation of discrimination through very different lenses because of their disparate racial and gender identities. Most implicit bias legal scholarship has focused on the cognitive processes of insiders (whites and men) in assessing and evaluating outsiders (people of color and women). This Article opens a new field of legal scholarship, and complements the implicit bias literature, by drawing on empirical studies to explicate the cognitive processes of outsiders in interpreting potential incidents of discrimination.
Studies show that blacks and whites are likely to differ substantially in how they conceive of and define discrimination. White people tend to believe that widespread expressions of a commitment to racial equality and the reduction in overt expressions of racist attitudes reflect reductions in racism, whereas black people tend to believe that racist attitudes and behaviors have simply become more difficult to detect. While many whites expect evidence of discrimination to be explicit, and assume that people are colorblind when such evidence is lacking, many blacks perceive bias to be prevalent and primarily implicit. Studies have also revealed that men and women differ significantly in assessing incidents of sexual harassment. Differences in perception have profound implications for how our judicial machinery, which consists predominantly of white male judges, resolves antidiscrimination claims. Judges are likely to impose their own contingent conceptions of discrimination, with little or no awareness of the perceptual limitations shaping their judgments. This Article explores reforms in the judicial system and in workplaces that could help sensitize both insiders and outsiders to the other perspective and break down the rigidity in these clashing mindsets.
I had the pleasure of hearing Russell present, and interacting with him on, this piece at the Seton Hall Employment and Labor Law Scholars' Forum last October and it is truly an exceptional piece. As he states, it is the first paper to draw on empirical work to explore how insiders and outsiders view discrimination through diverse psychological frameworks. Its insights may help to better develop employment discrimination law in the years to come.
April 3, 2008
BNA's Daily Labor Report (subscription required) has a nice summary of labor and employment bills pending before Congress, and provides an update on their status. Several immigration-related bills dominate the list--many of them Republican-sponsored--but this quote sums up their future: "Senate Republicans are expected to
hit a wall as the Senate Democratic leadership has made no indication
that it would take up any immigration-related bills ahead of the
Other bills include the Genetic Nondiscrimination Act, which has broad support but is being held up by an attempt to include a business necessity defense. An attempt to extend unemployment benefits also faces an uncertain future because it may not be dealt with in time. In contrast, the Lilly Ledbetter Fair Pay Act and Fair Pay Restoration Act--which would require wage discrimination statute of limitations to begin running each time an employee receives a paycheck--has passed the House and is considered a high priority among Senate Democrats.
Naughty, Naughty!: Wal-Mart Goes to Some Length to Catch Worker in Affair
From the state court of appeals in Arkansas, as reported by CCH Work Week:
The whole unsavory incident gathered a fair amount of notoriety: Wal-Mart fired a global services manager for engaging in an improper affair with a coworker, in violation of the company's fraternization policy, after it hired an investigator to follow the couple down to Central America to catch them in a clandestine encounter.
The discharged employee filed suit, alleging breach of contract and public-policy wrongful discharge, contending he was actually fired for reporting inhumane working conditions in Wal-Mart's factories abroad and for disclosing the company's attempts to strong-arm employees into altering the results of their factory-monitoring findings. But even if it was true that Wal-Mart's annual report contained deceptive information about factory working conditions, as the employee alleged, "Wal-Mart's purported failure to follow its private, internal policies or the labor laws of foreign countries does not implicate the public policy of this state," an Arkansas appeals court held, affirming summary judgment for the retailer.
The case is Lynn v. Wal-Mart Stores, Inc. (Ark App. Ct. Mar. 19, 2008) (Westlaw Subscription required). Actually, more lurid than surprising since it is common in public policy tort cases for states only to find instances of public policy in constitutional provisions, statutes, and sometimes, in decisional case law.
Still, the whole idea of Wal-Mart hiring an investigator to follow an employee to Central America is not only unnnerving, but also begs the question of whether that same money can be better put to lower employee health insurance premiums.
Should Obesity Bias Be Added to Title VII?
When I say obesity bias, I am not referring to those morbid obesity situations which chronically affect an individual's health and may be covered under the ADA. Rather, I refer to generally overweight people who can make the argument that they have been historically discriminated against and harassed.
For support for this argument, consider this recent Yale report on the subject, with its surprising findings (via CCH Workweek):
Discrimination against overweight people—particularly women—is as common as racial discrimination, according to a study by the Rudd Center for Food Policy and Obesity at Yale University. "These results show the need to treat weight discrimination as a legitimate form of prejudice, comparable to other characteristics like race or gender that already receive legal protection," said the study's lead author.
I would say this is a pretty controversial point, but consider experiences from your own lives: have you noticed obese individuals being treated differently in the workplace as far as their terms and conditions in the workplace?
And if they are, at least with regard to employee benefits like health insurance, does not the employer have a legitimate, non-discriminatory reason for not wanting over-weight individuals on their payroll who will make health insurance likely more expensive for everyone. And don't obese individuals tend to be, on average, more absent from work because more frequent health problems?
Pun intended warning: food for thought.
6th Cir. Takes on Title VII Association Retaliation Claim
Coming during the same short period of the association discrimination claim in the Iona case by the 2nd Circuit, the Sixth Circuit has now found, 2-1, for a plaintiff in an associational retaliation claim under Title VII in the case of Thompson v. North American Stainless, LP, 07-5040 (6th Cir. Mar. 31, 2008).
Here are some passages from the opinion:
Shortly after Appellant Eric Thompson’s fiancée filed a discrimination charge with the EEOC against their common employer, the Appellee, Thompson was terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation under such circumstances. We hold that that they do, and REVERSE the district court’s grant of summary judgment to the employer . . . .
According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiff’s termination . . . .
Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity. Such a reading, however, “defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade “reasonable workers” from such an action . . . .
The Compliance Manual expressly states that a person claiming retaliation need not be the one who conducted the protected activity. “Title VII . . . prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).
The dissent, on the other hand writes:
From time to time, we should remind ourselves that we are judges, not legislators. This is such a time. Because the majority has rewritten the Civil Rights Act of 1964 to conform it to their notion of desirable public policy, I respectfully dissent.
Another example of a fight between remedialists and literalists in construing the statute. I think the remedialists have the better argument both because Title VII is a remedial statute par excellence, and because, as Noah Zatz commented to the Iona post:
It is a straightforward extension of a race-plus/stereotyping theory: employers cannot insist that white people have relationships (of any sort) only with other white people (or Democrats, or Minnesotans). For a general discussion of these cases, and their connections to other intergroup "association" claims, [shameless plug warning] see my "Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity," 77 Indiana Law Journal 63 (2002), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902656.
Also, I suspect Alex Long is feeling vindicated by this holding. Here is his recent article, The Troublemaker's Friend: Retaliation against Third Parties and the Right of Association in the Workplace, which is directly on point.
Hat Tip: Chris Timmermans
30th annual Kenneth M. Piper Lecture
Cynthia Estlund from NYU will deliver the 30th annual Kenneth M. Piper Lecture on Tuesday, April 8, 2008, at 11:30 a.m. Central Time at Chicago-Kent College of Law. Cindy will speak on Corporate Self-Regulation and the Future of Workplace Governance. Commentary will be provided by Ron Bloom of the United Steelworkers and former NLRB Member Marsahll Babson of Hughes, Hubbard & Reed . . . .
If you are in the Chicago area, please join us for the lecture and for a pre-lecture perception which will begin at 10:30 a.m. If you are not able to attend in person, please join us for the lecture via the Internet. To reach the webcast, go to www.kentlaw.edu.
For more about Cindy's Lecture you can find more info here.
April 2, 2008
Senate Appropriations Committee Hears from NLRB Members
Update: Copies of all of the witnesses' testimony and an oral transcript of the hearing are now available at the committee's website.
Today, the Senate Appropriations Committee's Subcommittee on Labor, Health and Human Services, and Education and Related Agencies held a hearing on "The National Labor Relations Board Representation Elections and Initial Collective Bargaining Agreements: Safeguarding Workers' Rights?" NLRB Chairman Schaumber and Member Liebman testified, as did Prof. Gordon Lafer (University of Oregon) and John Raudabaugh (Baker & McKenzie).
Schaumber's testimony was very much in keeping with his new role as Chairman--he mainly stuck to the type of information you see in the NLRB's annual reports. Not surprisingly, Member Liebman was not as constrained, as she laid out a well-developed critique of the Board's performance in these areas (including more cites to academic scholarship than I can note here).
This makes at least the second Senate hearing on NLRB issues in the past few months, so we may see more political activity on this front as election day nears.
Hirsch on Taking States Out of the Workplace
Co-blogger extraordinaire, Jeff Hirsch, has published in the Yale Pocket Part, his new piece: Taking States Out of the Workplace.
It is perhaps counterintuitive to respond to a call for papers on new developments in state law by arguing that there should be no developments at all. With regard to one area of law, however, that is exactly what I am going to do. More precisely, I argue for one general development—the elimination of state authority to regulate the workplace . . . .
Despite sharing concern over the NLRB’s recent decisions, I am skeptical that transferring authority to states would be an effective strategy to promote unionization—and outright hostile to the idea as a matter of principle. Part of the disagreement is likely a difference of geography. The union perspective of state regulation looks much better when viewed from Cambridge than from Knoxville. Proponents of state regulation dream of the pro-union changes that Massachusetts and similar states would implement. My dreams, however, envision the nightmarish pro-employer changes that other states would adopt. Freeman suggests that such fears are exaggerated because the situation cannot get much worse in states with already low levels of unionization. I am not so optimistic. It is difficult to imagine that politically powerful employers and sympathetic state legislators would do nothing when presented with new authority over the workplace. Indeed, states have already shown what they would do when unencumbered by federal labor law. A large number of state employers, which are not covered by the NLRA, have no duty to recognize unions, and their employees lack any right to engage in collective action free from employer interference. If those states regulate labor at all, it is not to restrict employer action, but to prohibit employee activity—including one of the most fundamental rights under federal labor law, the right to strike.
Read it all, it is well worth it. I do not personally agree with Jeff, as he knows, because I believe in this hostile NLRB environment that states can do great service in protecting workers' rights by passing state laws, like Worker Freedom Act, which would outlaw captive audience meetings in the workplace.
And as far as geography, let's just say that I am little deeper in the South than he is.
The Grinch Finds His Small Black Shriveled Heart
A former Wal-Mart employee who suffered severe brain damage in a traffic accident won't have to pay back the company for the cost of her medical care, Wal-Mart told the family Tuesday.
"Occasionally, others help us step back and look at a situation in a different way. This is one of those times," Wal-Mart Executive Vice President Pat Curran said in a letter. "We have all been moved by Ms. Shank's extraordinary situation."
Eight years ago, Debbie Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.
After a tractor-trailer slammed into her minivan, the 52-year-old mother of three lost much of her short-term memory and was confined to a wheelchair. She now lives in a nursing home.
She also lost her 18-year-old son, Jeremy, who was killed shortly after arriving in Iraq. When Debbie Shank asks family members how her son is doing and they remind her that he's dead, she weeps as if hearing the news for the first time.
Now, I only wish that others would help the Grinches at Wal-Mart "step back and look at a situation in a different way" and provide decent wages and health insurance to their employees. And, yes, I know that ERISA law supported Wal-Mart here, but that is totally besides the point.
Calling All Law Professor Visitors
Dan Filler of The Faculty Lounge is aggregating data on law professor visitors for 2008-2009. If you or someone you know will be visiting at another school next year (besides the ones already listed in my previous workplace prof move post), please contact him here.
Recently Published Scholarship
- Rafael Gely (left) & Timothy D. Chandler (center), Card Check Recognition: New House Rules For Union Organizing?, p. 247.
- David L. Gregory (right), Labor Organizing By Executive Order: Governor Spitzer and the Unionization of Home-Based Child Day-Care Providers, p. 277.
- Jennifer Hill, Binational Guestworker Unions: Moving Guestworkers Into the House of Labor, p. 307.
- Victor Narro, Finding the Synergy Between Law and Organizing: Experiences From the Streets of Los Angeles, p. 339.
- Catherine K. Ruckelshaus, Labor’s Wage War, p. 373.
Duru: Baseball, Pensions, and Restorative Racial Justice
Jeremi Duru (left, Temple) has just posted on SSRN his article (forthcoming Cincinnati L. Rev.) Exploring Jethroe's Injustice: The Impact of an Ex-Ballplayer's Legal Quest for a Pension on the Movement for Restorative Racial Justice. Here's the abstract:
In 1950, at the end of a triumphant season with the Boston Braves, outfielder Sam Jethroe [right] earned Major League Baseball's National League Rookie of the Year Award. Limited, as a consequence of his race, to three full seasons and one partial season in the big leagues, however, Jethroe fell narrowly shy of the four-year eligibility requirement for a Major League Baseball pension. And, forty years later, without the safety net pensions are designed to provide, Jethroe found himself destitute and homeless. Shortly before his death in 2001, Jethroe sought, but failed to secure, legal relief from Major League Baseball.
Far from a minor matter of one retired ball-player's fight for supplemental income in his golden years, the basic characteristics of Jethroe's suit - a claim for pension funds denied as a consequence of Jim Crow era racial discrimination - present a uniquely powerful claim for delayed racial justice. Analyzed, such claims, coined "Jethroe Claims" by the author, avoid criticisms routinely launched at delayed racial justice claims and thus present a model for claims potentially open to scores of people of color who, by virtue of racial discrimination suffered during their working years, are deprived pension benefits in their later years.
This article explores the feasibility of the civil rights statute 42 U.S.C. Section 1981 as a vehicle for such claims as well as the substantial obstacle statutes of limitations would pose. Recognizing, however, an enduring concern among jurists and scholars alike as to statutes of limitations dismissal of otherwise meritorious claims seeking to remedy civil rights deprivations, this article argues Jethroe claims should be spared statutes of limitations application and considers various approaches to thwarting such application.