Saturday, May 10, 2008

Top-5 International Employment & Labor Law SSRN Downloads

Top-5 Benefits/Compensation/Pension SSRN Downloads

Friday, May 9, 2008

British Employers Create Employee Blacklist

BlacklistMajor British companies (such as Harrods) are creating a National Staff Dismissal Register (NSDR) listing employees who have been fired for stealing, forgery, fraud, damaging company property, or causing losses to their employers and suppliers, as well as employees who resigned before the company could investigate such charges against them.  According to BBC News, the database

will allow employers to search for potential workers by name, address, date of birth, national insurance number and previous employer.  Records on individuals - accessible online via an encrypted password system - will be kept for a five-year period and can include photos.

The employer association creating NSDR explains that the register is a way to deter theft and other misconduct, which of course costs employers, consumers, and (less directly) honest employees billions every year.  The TUC says the NSDR is open to abuse:

The TUC is seriously concerned that this register can only lead to people being shut out from the job market by an employer who falsely accuses them of misconduct or sacks them because they bear them a grudge. Individuals would be treated as criminals, even though the police have never been contacted.

Comments from individual employees express concern that employers could use the NSDR to blackmail employees into assenting to sexual harassment advances, not reporting health and safety violations, working off the clock, and the like.

Here in the States, I would imagine that the threat of defamation lawsuits would be a serious impediment to the creation of such a registry.

For more, see BBC News, Bust-Up with the Boss?, via Work-Related Blogs and News.


May 9, 2008 in Labor and Employment News | Permalink | Comments (5) | TrackBack (0)

Contextual Evidence of Gender Discrimination in Litigated Cases

Monahan Walker Mitchell

John Monahan, Laurens Walker, and Gregory Mitchell (all of U. Va.) have just posted on SSRN their article Contextual Evidence of Gender Discrimination: The Ascendance of "Social Frameworks" (forthcoming Va. L. Rev.).  Here's the abstract:

In Dukes v. Wal-Mart, the Ninth Circuit upheld the certification of the largest employment discrimination class in history, with more than 1.5 million women employees seeking over $1.5 billion in damages.  A crucial piece of evidence supporting class certification came from a sociologist who testified that he performed a social framework analysis to evaluate Wal-Mart against what social science research shows to be factors that create and sustain bias and found the company wanting.  As authority for introducing this analysis, the expert and the Ninth Circuit relied on our prior work introducing the concept of social framework to refer to the use of general social science research to provide a context for the determination of specific factual issues in litigation.  In this article, we review and recast the procedures originally proposed for apprising juries of general research results to assist in resolving the case before them.  We then apply these updated procedures to the expert testimony in Dukes v. Wal-Mart, which promises to be a template for future employment discrimination litigation.

Experience over the past 20 years has shown that that courts will typically allow general contextual information from social science research to be conveyed to the jury by expert witnesses rather than via instructions, as originally envisioned.  Where this occurs, we believe it essential that courts limit expert testimony to a description of the findings of relevant and reliable research and of the methodologies that produced those findings, and preclude the witness from linking the general research findings to alleged policies and practices of a specific firm. The landmark class action of Dukes v. Wal-Mart illustrates the centrality of social framework evidence to modern employment litigation, as well as the need for courts to clarify and circumscribe the role of the experts who introduce them.


May 9, 2008 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2008

If It Looks Like a Duck and Quacks Like a Duck . . . .

Nlrb Another circuit court rejects an NLRB anit-union decision--this time a Ninth Circuit panel with a Republican majority.  ALPA v. NLRB (May 8, 2008), involved the NLRB's attempt to assert jurisdiction and find an unfair labor practice against the Air Lines Pilots Association.  The union filed counterclaims (seeking to compel arbitration) and a grievance under its collective bargaining agreement with DHL Airways, which the Board said was unlawful secondary activity.  Wondering why the NLRB found a ULP against a pilots union's dispute with an airline?  You're not the only one:

We conclude that, in determining that it had jurisdiction over this dispute, the Board misapplied the law of Jacksonville Terminal Co. In Jacksonville Terminal, the Supreme Court rejected the argument that the National Labor Relations Board had exclusive jurisdiction over an action to enjoin a union of railroad employees from picketing a railway terminal, holding, “[W]hen the traditional railway labor organizations act on behalf of employees subject to the Railway Labor Act in a dispute with carriers subject to the Railway Labor Act, the organizations must be deemed, pro tanto, exempt from the National Labor Relations Act.” Id. . . . Jacksonville Terminal therefore requires us to consider the substance of the dispute in determining whether the NLRB may exercise jurisdiction. . . .

[In this case,] the underlying dispute that gave rise to [the carrier's] charge reflected an effort by a traditional railway labor organization (ALPA), acting on behalf of employees subject to the Railway Labor Act[], to enforce a collective bargaining agreement entered into under the Railway Labor Act. The question of whether DHL[] was still bound by the collective bargaining agreement and the Side Letter Agreement was one that the litigation in federal district court was intended to resolve. DHL[] itself filed that lawsuit, invoking jurisdiction under the Railway Labor Act.

In its decision and on appeal, the NLRB has reasoned that the essence of this dispute is not between entities which are covered only by the Railway Labor Act and that therefore Jacksonville Terminal does not foreclose jurisdiction. . . .  In Jacksonville Terminal, the unions’ membership similarly included a “small percentage of employees who are not subject to the Railway Labor Act, and who may be subject to the National Labor Relations Act.” None of ALPA’s National Labor Relations Act employee members are in any way involved in the present case. This case concerns ALPA’s efforts to enforce a scope clause regarding only air transportation work on behalf of Railway Labor Act pilots. As noted above, ALPA and DHL[] were already working to resolve this dispute, invoking the Railway Labor Act, when those efforts were cut short by the present NLRB action.

This is one of those "what were they thinking?!" kind of cases that you hate to get as an NLRB appellate attorney.  Good to see that the court wasn't willing to go along.


May 8, 2008 in Labor Law | Permalink | Comments (4) | TrackBack (0)

Secunda on Garcetti for Federal Employees

Secunda Paul Secunda (Mississippi for a few more days, then to Marquette) has just posted on SSRN his article (forthcoming First Amendment L. Rev.), Garcetti's Impact on the First Amendment Speech Rights of Federal Employees. Here's the abstract:

Garcetti v. Ceballos does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers. Yet, if possible, the situation is even worse for federal employees.

For the uninitiated, Garcetti is the watershed public employment free speech case that drastically cuts down on public employees' First Amendment expression rights while such employees are working pursuant to their official duties. In the name of managerial prerogative, federalism, and separation of powers, it has the effect of making government less transparent, accountable, and responsive because public employees are less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste, without facing retribution from their public employers.

The reason for Garcetti's magnified effect on federal employees relates to three primary factors, which include: (1) the unique administrative framework established for federal employees to vindicate their First Amendment interests under the Civil Service Reform Act of 1978 (CSRA); (2) the inexpert nature of the Merit Systems Protection Board (MSPB), the federal agency which has been delegated to hear federal employees First Amendment claims; and finally, (3) the apparent inability of the Federal Circuit Court of Appeals, the court delegated to hear appeals from the MSPB, to understand the nuances and subtleties of the Garcetti decision, given their lack of experience deciding these types of constitutional issues.

The cumulative impact of these factors is that federal employees, post-Garcetti, will primarily have to vindicate their rights to free speech in the workplace through a hodge-podge of civil service laws, grievances filed under collective bargaining agreements, and ineffective federal whistleblower statutes. When all of these fail, as they inevitably will, federal employees will have to just grin and bear the evisceration of their constitutional rights and stay silent at work. Collectively as citizens, we are all the poorer for tolerating this undemocratic state of affairs.

Paul's research in this area is an important addition to the literature not just on the First Amendment and employee voice but also on the issue of government accountability and efficiency. If federal employees are not protected for engaging in this sort of speech, they won't do it. And if they don't do it, the federal government can't find out what problems exist within it and cannot fix those problems.


May 8, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

An Avoidable Disaster

Mine A recent congressional report on last year's mining disaster in Utah is disturbing, yet not surprising:

The general manager and possibly other senior staff at the Crandall Canyon Mine near Huntington, Utah where 9 miners died in August 2007, hid information from federal mining officials that could have prevented the disaster and should face criminal charges, according to a Congressional investigation whose results were released Thursday. The report also said that the mining company should never have submitted a request to remove coal from the section of mine where the collapse occurred, and that federal mining officials should not have approved the proposal, because of foreseeable dangers. . . .

On Aug. 6, roof supports in a section of the mine gave way in a major collapse that registered 3.9 on the Richter scale and left six miners fatally entombed. Ten days later, three more miners who were working as rescuers died after more tunnels fell. The deaths were avoidable, the 150-page report said, because five months before the August disaster in the north section of the mine, a similar collapse had occurred in a southern section, offering clear “red flags” indicating that the mine was unstable.

Rather than informing federal mining officials about the March collapse, the report said, the mine operator cleaned up the site and went on with work in a nearby section. Aside from the instability indicated by the March collapse, known as a bump or bounce, the report said that notes from 2004 from the federal Bureau of Land Management, which owns the land where Crandall Canyon is located and leased it to the mine operator, clearly indicated that the mine had become unsafe and that pillars had already begun deteriorating. . . .

At the time of the disaster, the mining company was conducting retreat mining, a risky type of extraction that requires miners to remove coal from the very pillars that hold up the tunnels, allowing controlled roof collapses. Aside from missing clear warnings, mine operators seemed to have tried to conceal their own culpability, the report said. Deposed by the committee, one federal mining official, Allyn Davis, who inspected photographs of the mine after the March bump, said that the images differed significantly from the description of the event given to him by the mine manager, Laine Adair. . .

The Congressional investigation, however, found that rather than informing officials at the Mine Safety and Health Administration of the March bump immediately after it occurred, Crandall Canyon officials instead contacted officials at the Bureau of Land Management. “This is curious,” said Mr. Miller, the committee chairman. “While the Mine Safety and Health Administration is responsible for safety, Bureau of Land Management is responsible for ensuring a profit. The mine operator called Bureau of Land Management.”

All five employees of the companies associated with the mine who were called to testify before the committee, including Mr. Murray, invoked invoke their Fifth Amendment right against self-incrimination and refused to cooperate. Three current or former federal mining officials and one official from the Bureau of Land Management were also asked to give depositions; all of them complied.

I'd like to think that this report would prompt changes in the industry, as well as the government's approach to regulating mines, but history suggests otherwise.  Even on top of the Sage disaster, there seems to be little interest in making substantial changes.  Although a new administration could improve matters, this problem is not a recent one and unlikely to go away anytime soon.


May 8, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Shout Out to New Canadian Labour and Employment Law Blog

D_doorey David Doorey (York Univ. Canada) has a new blog, Doorey's Workplace Law Blog, dealing with issues in Canadian labour and employment law and industrial relations.  David plans to use it mostly as a teaching aid to encourage students to think about current events. 

This jibes nicely with David's recent project, Harry and the Steelworker (or Teaching Labor Law to Non-Law Students).

I think Canadian folks and others interested in this subject matter will find this new blog very useful. Check it out!


May 8, 2008 | Permalink | Comments (0) | TrackBack (0)

Same-Sex Benefits Defeated in Michigan

Michigan The AP is reporting:

A same-sex marriage ban prevents governments and universities in Michigan from providing health insurance to the partners of gay workers, the state Supreme Court ruled Wednesday.

The 5-2 decision affects up to 20 universities, community colleges, school districts and governments in Michigan with policies covering at least 375 gay couples.

Gay rights advocates said the ruling was devastating but were confident that public-sector employers have successfully rewritten or will revise their benefit plans so same-sex partners can keep getting health care.

The ban, a constitutional amendment approved in November 2004, says the union between a man and woman is the only agreement recognized as a marriage "or similar union for any purpose."

Just another consequence of LGBT individuals being denied equal protection of the laws by not being able to be married. Simple lesson: you take away gay marriage, you take away employee benefits.


May 8, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

10th Cir. Lets ADA Association Discrimination Claim Go Forward

Shakyscales Here is another ADA association discrimination case from the Tenth Circuit, Trujillo v. Pacifica Corp., No. 06-8074 (10th Cir. May 7, 2008), about a couple who worked for a company in Wyoming for a long time and claimed that there were fired because of healthcare costs associated with their son's illness.  Their son had a brain tumor and eventually died from his illness, but his healthcare costs were over $ 60,000 before he died.  A mere two weeks after their son suffered a relapse of his cancer, both parents were fired by the company based on alleged timekeeping infractions.

The couple sued under ERISA and the associational discrimination provisions of the ADA.  Under association discrimination, a covered employer is not permitted to discriminate against employees who have an association with a family member with a qualified disability (we recently wrote about this type of claim in the DeWitt case in the 7th Circuit, in which Judge Posner had a provocative concurrence.). In DeWitt, the case was allowed to proceed because their was sufficient evidence that the employer engaged in association discrimination, but Judge Posner asserted that, "But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It’s as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case."

The district court, applying the McDonnell Douglas pretext framework to the case, found that, "the Trujillos
failed to raise a reasonable inference that the disability of Charlie was a determining factor in PacifiCorp’s decision to terminate them."  The 10th Circuit disagreed with the district court's formalist expense approach (like the one Judge Posner had championed), and found that, "[u]nder the totality of the circumstances approach, the Trujillos raised the necessary reasonable inference of discriminatory motive to establish a prima facie case of association discrimination . . . . With this evidence, the Trujillos have established a prima facie case of association discrimination in the expense category."  The appellate court also found there was sufficient evidence of pretext for the claim to go forward.  Interestingly, the 10th Circuit completely ignored Judge Posner's concurrence in DeWitt.

And I think this is absolutely right giving the temporal proximity between the decision to terminate both parents on what appears to be a trumped up charge mere days after the child's cancer relapse.  (Gee, another sensitive employer).  Indeed, this is exactly the type of case for which the association discrimination provisions of the ADA were enacted.

On the ERISA claim,  the couple brought a Section 510 discrimination claim alleging that their rights to benefits were interfered with by the company when they were terminated.  Based on the same inferential discrimination evidence for the ADA claim, the ERISA claim was also allowed to go forward.

In all, I'll repeat what I said in my last association discrimination post:

Disability discrimination is not just based on prejudice against one's disability for let's say distaste or distraction on the one hand, and the cost associated with the disability on the other.  It is usually a combination of such factors.  Indeed, it is not too far-fetched to believe that much of the bias against individuals with disabilities (and those that support them) is caused to a considerable degree because of the vast expense sometimes associated with having a disability and the consequent belief of others that those with disabilities and their associations are getting an unfair advantage. In other words, I just don't see expense discrimination being a category, separate and apart, from disability discrimination at all.

Hat Tip: Howard


May 8, 2008 in Disability | Permalink | Comments (0) | TrackBack (0)

Third-Party and Attitudinal Benefits of ADA Accommodation

Emens Elizabeth Emens (Columbia) has just posted on SSRN her article Integrating Accommodation (U. Pa. L. Rev.).  Here's the abstract:

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations - from ramps to ergonomic furniture to telecommuting initiatives - can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups of people helps to ameliorate discriminatory attitudes through contact. But integrating people with disabilities also means integrating accommodations. These accommodations affect and benefit third parties in the workplace and thus shape attitudes toward both disability and the ADA. An understanding of third-party benefits is crucial to designing and disclosing accommodations in ways that will best promote the aims of the statute and the prospects of disabled people.


May 8, 2008 in Disability, Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 7, 2008

Growing Trend of Amicus Assistance in Appellate Employment Discrimination Cases?

Friendofthecourt Jack Sargent of EEO/iNews fame sends the following interesting examples of Court of Appeals use of amicus assistance in federal appellate employment discrimination cases.

In both of these cases, the Plaintiff-Appellant appeared pro se with amicus assistance arranged by the Appellate Court.  In each case, the Appellant prevailed in whole or in part.

In the first case, Salamon v. Our Lady of Victory Hosp., No. 06-1707 (2nd Cir. April 22, 2008), the Second Circuit (see footnote 2) "appointed" counsel.

In the second case, Middlebrooks v. Leavitt, No. 05-1860 (4th Cir. May 6, 2008), the Fourth Circuit (see p. 4, 3rd full par.) invited amcius assistance.

Is this a growing practice in employment discrimination appellate cases?  Do others have similar examples to show a growing trend?


May 7, 2008 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Anchor Behaving Badly

TwcAs reported by The Smoking Gun, Hillary Andrews, a former anchor on The Weather Channel won an arbitration award against TWC for sexual harasssment engaged in by her co-anchor, Bob Stokes. The network is now seeking to keep secret the details of the arbitrator's 17-page report, which was apparently very critical of Stokes and TWC management, while Andrews wants to publicly file the document in a lawsuit she has brought against Stokes in a Georgia state court.

Court records show that Andrews was paired with Stokes after her September 2003 hiring, and that she replaced a female "on-camera meteorologist" who had worked with Stokes for three years. According to Andrews's lawsuit against Stokes, the prior anchor was abused daily by him and "routinely hid in the women's dressing room in between shifts to avoid contact with him." The woman, Andrews alleged, was forced out of TWC after repeatedly complaining to management about Stokes's harassment. Andrews claims that "history quickly repeated itself" when Stokes began harassing her, though his behavior was "worse for [her] than for her predecessors because Stokes was sexually attracted to her and romantically obsessed with her." Stokes, she claimed, made crude sexual remarks to her, leered at her chest, and followed her into the women's dressing room. He also allegedly questioned her "over and over again, non-stop" about her sex life, . . . . When she rebuffed his advances, Andrews charged, Stokes's "hostility and volatility became a constant" and he sought to "sabotage" her on-air performance and even resorted to insulting her during live shows. Though initially "loath to complain" about Stokes for fear of "career suicide," Andrews eventually reported his behavior to TWC officials and sought a reassignment with a new co-anchor. Instead, Andrews alleged, she was relegated to a series of undesirable assignments, including "the overnight shift--the same assignment [TWC] had given Ms. Andrews's predecessor after she complained about Stokes."

TWC's owner wants the report to remain secret as it seeks to sell TWC. Considering that my trainer at the gym this morning told me about this, I think secrecy is a losing battle.


May 7, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Do You Believe in Magic?

Harry_potter_calendar_photo The title of this post is not just The Lovin Spoonful song, but a question a school district actually put to a teacher (via Tampa Bay Online):

The telephone call that spelled the end of Jim Piculas' career as a substitute teacher in Pasco came on a January day about a week after he performed the disappearing-toothpick trick for a group of rapt middle school students.

Pat Sinclair, who oversees substitute teachers in the Pasco County School District, was on the phone. She told Piculas there had been a complaint about his performance at Rushe Middle School in Land O' Lakes.

He asked what she meant.

"She said, 'You've been accused of wizardry,' " Piculas said.

He said the statement seemed bizarre to him, like something out of Harry Potter.

Piculas said he replied, "I have no idea what you're talking about."

He said he also told Sinclair, "It's not black magic. It's a toothpick."

I mean it's not like he turned anyone into a newt.

In any event, I am sure this is not the first or last case of witch and warlock discrimination (ok, smiling a little bit . . . ).  The Crucible, anyone?

Hat Tip:  Nicholas Greene


May 7, 2008 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)


Crslogo Ellen Dannin posted on the worklaw listserv this morning this piece on a Congressional Research Service (CRS) report on ERISA entitled: Summary of the Employee Retirement Income Security Act (ERISA) April 10, 2008.

Here is the summary of the report:

The Employee Retirement Income Security Act of 1974 (ERISA) provides a comprehensive federal scheme for the regulation of employee pension and welfare benefit plans offered by employers. ERISA contains various provisions intended to protect the rights of plan participants and beneficiaries in employee benefit plans. These protections include requirements relating to reporting and disclosure, participation, vesting, and benefit accrual, as well as plan funding. ERISA also regulates the responsibilities of plan fiduciaries and other issues regarding plan administration. ERISA contains various standards that a plan must meet in order to receive favorable tax treatment, and also governs plan termination. This report provides background on the pension laws prior to ERISA, discusses various types of employee benefit plans governed by ERISA, provides an overview of ERISA's requirements, and includes a glossary of commonly used terms.

Sounds like a good background resources for all your ERISA research needs.


May 7, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

9th Cir. on Federal Employee Privacy

Tree Here's an interesting federal employment privacy case from the 9th Circuit brought to my attention by

The U.S. Court of Appeals in San Francisco (9th Cir.) reached an unsettling conclusion last week when it allowed the names of 23 federal employees to be withheld after they were investigated following the death of two U.S. Forest Service firefighters in July 2003.

Following the blaze in the Salmon-Challis National Forest in Idaho that killed firefighters Shane Heath and Jeff Allen, the Forest Service was investigated and criticized by both the Occupational Safety and Health Administration and the agency's inspector general. Federal prosecutors filed criminal charges against the firefighting team's leader, Cmdr. Alan Hackett, who was convicted and agreed to have his name released after being sentenced to probation.

When the watchdog group Forest Service Employees for Environmental Ethics attempted to obtain more information about the deaths and the Forest Service's investigation that followed through a Freedom of Information Act request, the agency blacked out the names of 23 of its employees who had been investigated.

Ultimately, a three-judge panel on the Ninth Circuit ruled that releasing the names would have caused unjustified embarrassment to the employees and otherwise constituted a "clearly unwarranted invasion" of the employees' privacy.

How would have ruled here? This case comes under Exemption 6 of the Freedom of Information Act (FOIA) and the court concluded:

[A]s the Supreme Court has held, “some nontrivial privacy interest” is sufficient to justify the withholding of information under Exemption 6 unless the public interest in disclosure is sufficient to outweigh it.

Is the public interest sufficient where a watchdog group wants to learn more information about a workplace tragedy?  Hard call.

The name of the case is Forest Service Employees for Environmental Ethics v. U.S. Forest Service, 05-36221 (9th Cir. May 1, 2008).


May 7, 2008 in Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Sargent's EEO/iNews Newsletter

Newsletter Mitch Rubinstein at Adjunct Prof Blog writes today about a wonderful sources of employment discrimination law developments that we have known about for some time now.

And I agree with Mitch wholeheartedly that EEO/iNews is a wonderful free weekly newsletter which readers may find very helpful to keep abreast of new EEO law developments.  It is run by Jack Sargent, a retired attorney from the EEOC.

You can subscribe by sending Jack an email at Let him know that Mitch and I referred you. 


May 7, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Call for Congressional Review of Corporate Spying

CrimethincIn today's New York Times, Eric Schlosser has an interesting editorial calling for Congress to hold hearings on spying by corporations. He reports on recent surveillance by a firm hired by Burger King of a Student/Farmworker Alliance in Florida. This group was part of the coalition that led to the Tomato Pickers Deal that Jeff blogged about last November. In that post, Jeff reported that Burger King, along with the Florida Tomato Growers Exchange, was fighting the penny-a-pound raise that the workers had negotiated with McDonalds and Yum Brands (Taco Bell, KFC, Pizza Hut).

Apparently part of the battle has been to spy on those working for the change:

The Student/Farmworker Alliance and an affiliated nonprofit, the Coalition of Immokalee Workers, have for years been urging the fast-food industry to accept some responsibility for the plight of Florida migrants who harvest the tomatoes for its hamburgers and tacos. I am a longtime supporter of their work. The wages of these farm workers, adjusted for inflation, have declined by as much as 70 percent since the late 1970s. And hundreds, perhaps thousands, of migrants have been enslaved by labor contractors and forced to work without pay. . . .

In March, a woman named Cara Schaffer contacted the Student/Farmworker Alliance, saying she was a student at Broward Community College. . . .

Ms. Schaffer is the 25-year-old owner of a private security firm. Her company, Diplomatic Tactical Services, seems like the kind of security firm you’d find in one of Carl Hiaasen’s crime thrillers. Last year Ms. Schaffer was denied a private investigator’s license; she had failed to supply the Florida licensing division with proof of “lawfully gained, verifiable experience or training.” Even more unsettling, one of her former subcontractors, Guillermo Zarabozo, is now facing murder charges in United States District Court in Miami for his role in allegedly executing four crew members of a charter fishing boat, then dumping their bodies at sea.

In an interview, a Burger King executive told me that the company had worked with Diplomatic Tactical Services for years on “security-related matters” and had used it to obtain information about the Student/Farmworker Alliance’s plans — in order to prevent acts of violence. “It is both the corporation’s right and duty,” a company spokesman later wrote in an e-mail message to me, “to protect its employees and assets from potential harm.”

But the Student/Farmworker Alliance and the Coalition of Immokalee Workers are not dangerous, extremist groups. Both are pacifist, mainstream nonprofits inspired by the work of the Rev. Dr. Martin Luther King Jr. The coalition is supported by the Robert F. Kennedy Memorial Foundation, the Presbyterian Church (U.S.A.) and Pax Christi, the Catholic peace movement.

At first when I read this I wondered whether resort to state tort laws might be able to help rein in some of this behavior, rather than necessarily relying on Congress. But I quickly realized that, just as I said yesterday, these workers are in such a precarious position that they can rarely take advantage of the laws that might  protect them. That's why they're so exploitable. Sounds like it might be time for the Coalition to ramp up the PR campaign against Burger King.

Hat tip: Bill Herbert


May 7, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


Comparative Labor Law & Policy Journal
Volume 29, Number 3, Spring 2008

  • Haina Lu (photo above), New Developments in China’s Labor Dispute Resolution System: Better Protection for Workers’ Rights?, p. 247.
  • Mariann Arany Tóth, The Right to Dignity at Work: Reflections on Article 26 of the Revised European Social Charter, p. 275.
  • Lisa Waddington, When it is Reasonable for Europeans to be Confused: Understanding when a  Disability Accommodation is ‘Reasonable’ from a Comparative Perspective, p. 317.


May 7, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2008

EEOC Settles Racial Harassment Suit

Eeoc_2In something that sounds straight from the 60s (as these cases so often do), the EEOC has settled a racial harassment suit against Connectiv Energy and three subcontractors. CNBC has the story here. The charges were filed by four Black workers who alleged they were subjected to racial slurs, KKK graffiti, and a noose hung over their worksite for more than a week. The men worked on a construction site at the former Bethlehem Steel site in Bethlehem Pennsylvania where Connectiv was building a gas-fired power plant. The settlement amount was $1.65 million.

According to the story:

The consent decree does not constitute an admission of guilt by any of the defendants. The settlement calls for Conectiv to revise its anti-discrimination policies, to post a notice about the settlement at its headquarters and all construction sites, and to provide anti-discrimination training.

"Conectiv Energy is committed to work force diversity as a core value for all of our employees and our contractors working at every site and facility," spokeswoman M.Q. Riding said. She added that managers were immediately directed to investigate when Conectiv learned of the allegations.

I know it's my sick sense of humor, but the anti-discrimination training strikes me as odd in this context. Can people be trained to not hang nooses? Is it lack of training that allowed the harassers to do this? I can imagine the Monty-Python-esque skit now: "What? We can't hang nooses or spraypaint graffiti that refers to a group that used to torture and kill people like our coworkers? Oh. Thanks for letting us know. Sorry. These evolving rules on workplace conduct are so confusing. Whoops."

And yes, I'm sure that really what is meant is some effective communication that discrimination won't be tolerated, training for supervisors to enforce the new policies, and maybe some team-building kind of training for the workers, all of which would be good things in this situation. Still, I can't get John Cleese out of my head.


May 6, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)