June 7, 2008
H-2B Visas, Human Trafficking, and Hunger-strike
In a twist on the ongoing story about foreign workers, immigration reform, and H-2B visas, the NYT reports that about twelve metal workers from India who walked off their jobs at shipyards on the gulf coast are in their fourth week of a hunger strike in Washington. The workers claim they are victims of human trafficking.
The Indian workers say they were deceived by Signal International and labor recruiters when they paid as much as $20,000 for visas they believed would allow them to work and live permanently with their families in the United States. In fact, the H-2B visas are for short-term contracts.
“Everyone has a dream,” said one of the protesters, Paul Konar, a 54-year-old worker from the Indian state of Kerala, speaking in Hindi through a translator. “If we could come here legally to live with our families, that was my dream.”
Signal International, a marine oil rig construction company based in Pascagoula, Miss., insists it also was misled about the visas and has filed a lawsuit against the labor recruiters on the Gulf Coast and in India who obtained them for the workers.
“This whole thing got started because of bad recruiting practices,” Richard Marler, the chief executive of Signal, said in an interview. “I wanted these workers to be happy employees. Why would I bring someone in and make them unhappy so they would be less productive in their work?”
Most of the workers, who are metal fitters and welders, lost their legal immigration status when they left their jobs. They adopted the risky strategy of a public hunger strike, they said, to step up pressure on the Justice Department, which has the power to allow the workers to remain in the United States during an investigation of their case.
. . . The Justice Department this week confirmed it had opened an investigation [on the allegations of trafficking].
. . .
The Indian workers, among 100 or so who left their jobs in March, were taken to Signal shipyards in Pascagoula and in Orange, Tex., in late 2006 and early 2007. They said they lived in sweltering labor camps, crowded 24 workers to a room, under curfew and restricted from leaving the yards, with $1,050 a month deducted from their paychecks for their upkeep.
They said they learned only after they were here that they would not receive visas, known as green cards, to remain in this country. In March, the workers brought a federal lawsuit against Signal and the recruiters, claiming they were defrauded and exploited.
Among those sued by Signal are Michael Pol, a labor recruiter in Mississippi whose company is Global Resources; Malvin C. Burnett, an immigration lawyer in New Orleans; and Sachin Dewan, a labor recruiter based in Mumbai, India.
An ad placed by Dewan promised workers “permanent lifetime settlement in U.S.A. for self and family.” The workers are represented by the Southern Poverty Law Center.
June 6, 2008
Allegations That Will Give You Heartburn
BNA's Daily Labor Report (subscription required) reported on a settlement between the EEOC and a franchise owner of Krystal restaurants that readers in this part of the country know and either love or hate (EEOC v. New Capital Dimensions, Inc., N.D. Ga.). The alleged facts give plenty of fodder for the latter camp:
[A] Georgia restaurant firm and the Equal Employment Opportunity Commission have agreed to a $135,000 settlement of the commission's suit under Title VII of the 1964 Rights Act claiming that the employer ordered three black employees strip-searched when money went missing at the restaurant and then fired those who complained, EEOC announced May 22.
The former employees had claimed that after money was missing from a white cashier's register, the restaurant's general manager had ordered three black employees, two woman and one man, be strip-searched. Each was forced to remove his or her clothes in the presence of a white manager of the same sex, EEOC alleged. The white cashier was not searched at all, the former employees claimed, and the missing $100 was never located.
The three black employees who were searched--plus another black employee who complained about the incident--were either fired in retaliation for their complaints or constructively discharged, according to EEOC.
The decree provides that EEOC and New Capital Dimensions, which is based in Milledgeville, Ga. [and denied the allegations], settled the case to "avoid costs of litigation." EEOC had not yet conducted any depositions when the parties were able to reach agreement through mediation, said Robert Dawkins, the EEOC regional attorney in Atlanta. The decree provides that it "is not to be deemed or construed to be an admission of liability or wrongdoing" by the company but rather "constitutes the good faith settlement of a disputed claim."
That's right, no liability or wrongdoing here. Riiiiiggghht.
Employment Levels Down Again
The BLS has just released some bad unemployment numbers. In May, 49,000 jobs were lost, increasing the unemployment rate to 5.5%. Although that rate by itself isn't bad by historical comparison, it's troubling for several reasons.
First, the unemployment rate by itself is not that informative. Also important is the level of "underemployment," which includes people who are working less than they want, and the number of people who have simply given up looking for a job and are excluded from the unemployment figures, despite wanting a job. This makes historical comparisons less relevant.
Second, the trend is ugly. Employment. has decreased every month this year. Given everything else that's going on, this is only likely to make people more nervous, which in a consumer-driven economy like ours, is not a good thing.
Duke Energy ERISA Decision
We've got an update on a case that Paul posted on a couple of years ago. At issue in George v. Duke Energy Retirement Cash Balance Plan (D. S.C.) was whether the employer's conversion to a cash balance plan violated ERISA or the ADEA. As the BNA's Daily Labor Report (subscription required) reports, the district court, among other things, rejected the plaintiffs' ERISA and ADEA disparate treatment claims, but allowed the ADEA disparate impact claim to go forward:
Duke Energy Corp.'s cash balance pension plan does not violate the Employee Retirement Income Security Act's anti-discrimination and anti-backloading provisions, the U.S. District Court for the District of South Carolina ruled June 2 in joining several other federal courts that have addressed similar issues.
Looking to ERISA's anti-discrimination rule for defined benefit pension plans, the court found that to determine whether a cash balance plan discriminates against older workers, the relevant inquiry is whether the plan sponsor's "inputs" in the plan discriminate against older employees, not whether the "outputs" the employees receive at retirement are less than what younger employees receive. "Under Duke's Cash Balance Plan, the pay credits and interest credits are applied to each employee's hypothetical cash balance account in an age neutral fashion," Judge R. Bryan Harwell wrote. "Cash balance plans are not rendered discriminatory simply because younger employees have more time within which to accrue interest credits than older employees." . . .
The court further found that the plan did not violate ERISA's anti-backloading rule because the rate of benefit accrual under the cash balance plan was the result of a plan amendment and thus the only relevant formula for purposes of the anti-backloading rule was the cash balance plan formula with no consideration of the plan's prior traditional defined benefit formula. . . .
The court also dismissed claims that Duke Energy's cash balance plan resulted in disparate treatment of older workers in violation of the Age Discrimination in Employment Act. But the court refused to dismiss claims that the plan's "wear away" effect disparately impacts employees over the age of 40, in violation of the ADEA.
As Paul predicted, the tea leaves were not looking good for the ERISA claims. We'll see what the Fourth Circuit does if there's an appeal.
Technology Redact Snafu
This in via Jack Sargent and Law.com,
Lawyers involved in class action sex discrimination case against General Electric redacted "reams of pages in numerous briefs" to make them inaccessible to the public. Unfortunately, it appears that they used a document program's highlight function to do it. As a result, if you downloaded the documents, copied the black bars that covered the text on the screen and pasted them into a Word document, the words appeared. This will happen at least in Adobe and in Word--the words don't get erased, they just get overlayed by the black bars. I know because we went through this at my institution recently, trying to figure out how to not have this happen.
The security breach . . . underscores a hot issue in the legal profession involving uncovered trails of electronic data, known as metadata. Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield.
. . .
Redaction problems often arise when people use old versions of Adobe software, which turns paper documents into an easy-to-read electronic Portable Document Format, the format of choice for PACER and many other web sites with multiple documents.
There are ways to hide the text in older versions of Adobe, but the process is "cumbersome" and requires multiple programming steps . . .With the newest version of Adobe, it is pretty simple to hide the text with a black box and then scrub the hidden text behind it. . . This prevents people from copying and pasting into a Word document.
The parties in this case are in mediation and had agreed to file the documents under seal. Now that the information in them has leaked to the public, the playing field may have changed significantly. No one realized that this had happened--not the plaintiff's firm, which filed the documents, not GE's counsel, and not the folks at PACER.
The plaintiff, Lorene F. Schaefer, a lawyer in the company's GE Transportation, alleged that GE gave unfair preference to men in promotions to the top legal jobs. The class action seeks damages of $500 million and an injunction to halt GE's pay and promotion policies and practices. Schaefer filed the lawsuit last April after learning that she was to be demoted from her job as GE Transportation's top legal officer. She was placed on paid administrative leave last May after complaining about her demotion.
As an aside, a forthcoming issue of the Employee Rights and Employment Policy Journal will focus on a number of issues involving technology in the workplace--metadata is one of the subjects.
Another Reason Not To Fly
Fedsmith.com has a post (quoting the Aero-News Network) on a disturbing statistic at the Transportation Safety Administration (TSA). Shockingly, it appears that being a TSA airport screener isn't a whole lot of fun, because the turnover at the agency is high--disturbingly so for a job so central to safety:
Over one in five screeners quit their jobs in 2007, according to a new TSA report obtained by the Federal Times. That report states 21.2 percent of workers told TSA to take their jobs and screen them in 2007, slightly above the 2006 rate of 20.9.
Most worrisome to TSA officials is the fact its "Performance Accountability and Standards System" -- implemented in 2005, which ties screener pay to performance -- hasn't had much effect toward keeping screeners on the job. In its first full year, PASS did convince slightly more workers to stay with TSA than in 2005, when the attrition rate was at a staggering 23.5 percent... but the program has still failed to reduce the attrition rate below 20 percent.
On Thursday, the National Treasury Employees Union called on Congress to investigate how PASS may be affecting attrition, for better or worse. "With roughly 8,000 of the approximately 40,000-member TSA work force leaving each year, TSA is incurring astronomical and unnecessary costs of training and retaining, recruiting and hiring and loss of productivity due to this revolving door," NTEU President Colleen Kelley said in a statement. "It is alarming that such a critical work force is in a constant state of flux."
The one question this raises for me is whether the private screening companies had a similar turnover rate before the TSA was created. The job has obviously changed a lot, which makes a comparison hard, but these numbers would have a better context in relation to past experience. I seem to remember similar problems (and worse) with those companies, but I'm sure someone has a better memory on this point.
June 5, 2008
More Airline Job Cuts
Somewhat lost in the din over increased luggage fees is the fact that the major airlines are in the process of cutting a significant number of jobs. Continental is the latest, announcing cuts of approximately 3,000 positions. Most other major airlines have also said they will make reductions. The airline industry has looked pretty bleak for a long time and the increase in fuel prices has squeezed it further. The reaction has been major cuts in overall service, with the accompanying loss of jobs. As with all cuts of this size, the potential for disputes with the airline unions are possible, although I haven't seen anything concrete yet.
Lessening the possibility of such strife, Continental's CEO and its president stated that they would not accept salaries for the rest of 2008. Not surprisingly, at least one union official approved of their move and stated that "I don’t always agree [that the CEO] is right, but he has managed the airline through some difficult times, and that’s what we need."
Just shows that a little sacrifice goes a long way (although I'm such the raw numbers of the declined salary is large, I'm guessing that it's peanuts in relation to the wealth of both airline officials ).
The Impact of Privatization on Persons with Disabilities
Ellen Dannin (Penn St.) has just posted on SSRN her article (forthcoming Minn. L. Rev.) Counting What Matters: Privatization, People with Disabilities, and the Cost of Low-Wage Work. Here's the abstract:
Privatization is justified on a cost-benefit analysis, that is, as providing better services at lower cost. The value of that assessment depends on including all costs and benefits. However, most assessments appear to be primarily limited to a comparison of wages and benefits. As a result, it appears that many important costs may not be included in assessing privatization.
This article attempts to improve our assessment of privatization by using a small privatization event to identify types of costs not normally considered. The event was the privatization of Internal Revenue Service mailrooms in the period April 2003 to the present. Among the items included in the assessment were costs of the process of privatization, the taxpayer costs from dislocating the job incumbents, and taxpayer subsidies provided to the private non-profit contractor that gave it a market advantage compared with for-profit employers.
As Dannin points out, the impact of privatization is complex and multifaceted, especially when accompanied by subsidies and subcontracts awarded to nonprofit organizations.
June 4, 2008
Trouble Brewing Between GM and Canadian Auto Workers?
At Doorey's Workplace Law Blog, David Doorey (York University) discusses the possibility that GM and the Canadian Auto Workers may be finding themselves battling each other for a while. It seems that GM's recent announcement that it would close some truck and SUV plants has run into a little problem with regard to its Canadian plant. According to Doorey, the CAW and CM just agreed to a new 3-year CBA only a couple of weeks ago. Apparently, GM had agreed to maintain production during the life of the agreement (and got some government loans as a result). Needless to say, the CAW isn't happy, but as Doorey notes, its a possible wildcat strike may be going too far:
In Canada, we have an extremely narrow right to strike. Unions can not strike during a collective agreement (Section 46 of the OLRA [Ontario Labor Relations Act]). Period. Doesn’t matter how awful the employer behaves. The union must file a grievance and try and get a remedy for breach of the collective agreement. It cannot take matters into its own hands. If workers do walk off the job, or engage in a “slow-down”, that is an illegal strike, and workers can be disciplined. And if the union encourages or supports the job action, it can be held liable for damages suffered by the company as a result of the job action. So [the union president's response to a question about a wildcat strike--that "everything was on the table"--] can become “evidence” that the union encouraged an unlawful strike.
Do you think our strike laws strike a reasonable and fair balance between the interests of employers and those of the workers when it bans workers from striking to protest employer decisions that will see the entire workforce displaced?
Check out his post, which has links to more information on the issue. It's interesting to see one area where American law be be ever-so-slightly more favorable to unions than Canadian law.
An Economics Approach to Hallstreet
David Kessler (Harvard student) has just posted on SSRN his Comment Why Arbitrate? The Questionable Quest for Efficiency in Hallstreet Associates. Here's the EP version of the abstract:
In Hallstreet Associates, the Supreme Court faced a choice between efficiency and freedom of contract, the two goals it had previously identified as motivating the Federal Arbitration Act. On the one hand, Hallstreet Associates and Mattel had contracted for expanded judicial review; on the other hand, that expanded judicial review took more time and made the process more costly than would have an unreviewable arbitration. When the Court had previously been faced with the choice between efficiency and freedom of contract, it opted for freedom of contract. For instance, in Dean Witter Reynolds, Inc. v. Byrd, the Court explained that “the overriding goal of the Arbitration Act was [not] to promote the expeditious resolution of claims . . . but merely the enforcement . . . of privately negotiated arbitration agreements.” In Hallstreet, however, the Court chose to preserve what it viewed as efficiency at the expense of freedom of contract, holding that parties could not contract for expanded judicial review of an arbitrator’s award.
But the Court’s actions are unlikely to create “efficient” outcomes. Arbitration without expanded judicial review might be efficient for the courts (at least in the short-term) and parties who would not have chosen to contract for expanded review anyway. But there is a large group of parties for whom arbitration without expanded judicial review will not be efficient: the group of parties who would contract for expanded judicial review if it were available. For those parties, the increased cost, in terms of time and money, of expanded judicial review would be outweighed by the benefit of having a check on the arbitrator’s decision. By denying them expanded judicial review, the Court’s decision imposes new inefficiencies. First, parties will have to hedge against the risk of a “bad” arbitrator in other ways, such as contracting of that risk. Second, coping with a “bad” decision by an arbitrator—a decision that would have been corrected had expanded judicial review been available—also creates additional costs for the parties. Third, the “bad” decision may also create costs for society: assuming that the laws are, in general, efficiency-promoting, an arbitrator’s uncorrected decision that is inconsistent with a law that is efficiency-promoting is also per se less efficient.
How will parties who would have preferred to contract for expanded judicial review respond? Those parties may lobby Congress to amend the FAA to allow for expanded judicial review (one might ask if the Court’s holding is intended to be legislation-forcing). Parties may also explore other avenues for securing review of their arbitration agreements. Inside the FAA framework, one solution would be creative “disempowerment” of arbitrators. Since the FAA allows a court to review an arbitration decision when “the arbitrators exceeded their powers,” parties could make explicit in their agreement that arbitrators do not have power to make legal errors.
In addition, the Court itself noted that the FAA does not preclude other avenues of expanding judicial review. One option suggested by Judge Posner is for the parties to contract for an “appellate arbitration panel” to review the arbitration decision. A second option might be to seek review from the trial judge under Rule 16 where, as in Hallstreet, the arbitration agreement was reached during the course of judicial proceedings. A third option is review for “manifest disregard” of the law. The Hallstreet Court rejected the argument that Wilko v. Swan allowed the parties to contract for expanded judicial review. But the Court’s holding may still leave open a recourse to “manifest disregard” review when the parties have not specifically contracted for it. The most drastic result of the Hallstreet decision could be a flight from arbitration. The Court itself acknowledged that such flight was a possibility, and both Hallstreet and its amici believed flight was likely. Whether or not a flight takes place is essentially a question of whether the extra costs of arbitration (without expanded judicial review) outweigh the cost of moving away from arbitration altogether.
The impact of the Hallstreet decision will not be clear for a while – but it is unlikely that the Court’s decision will create an efficient solution to the problem of contractually expanded judicial review.
Association Discrimination and the ADA
Two lawsuits now pending could open the door to many more claims under a little-known provision of the Americans With Disabilities Act that protects the jobs of relatives and other caregivers of disabled people.
In the most prominent case, Phillis Dewitt says she was fired in 2005 by Proctor Hospital in Peoria, Ill., as a result of her disabled husband's extensive medical bills. In the other case, a couple from Wyoming employed by the same company, PacifiCorp, alleges that the utility company fired them to avoid the costs of treating their son's brain tumor. Both lawsuits argue that the plaintiffs faced "association discrimination" based on a worker's association with a disabled person.
Congratulations to Lawrence Rosenthal (Chase), who is quoted in the article:
Lawrence Rosenthal, a law professor at Northern Kentucky University's Salmon P. Chase College of Law and author of a paper on association discrimination, says that "very few" plaintiffs win their claims because they must establish that the relative's or associate's disability is covered under the ADA and show a direct link between that and their employer's actions.
The WSJ article is Jane Zhang, Lawsuits Test Disabilities Act. Lawrence's article is Association Discrimination Under the Americans with Disabilities Act: Another Uphill Battle for Potential ADA Plaintiffs.
Call for Proposals: AALS Mid-Year Workshop on "Teaching Work Law"
Here's the call for proposals:
We are presently planning an AALS Workshop on Labor and Employment Law, entitled Harnessing The Interdisciplinary Nature of Work Law. The workshop will be held at the AALS Mid-Year Meeting on June 10-12, 2009, at the Westin Hotel in Long Beach, California. The workshop will include a time period where we have scheduled presentations based on responses to this request for proposals. To this end, we are soliciting proposals from law faculty who wish to participate in the conference on the topic described below. Ideally, we would like to offer workshop attendees a menu of topics from which to choose.
Many law faculty members spend a great deal of time thinking about and working on their teaching, and yet most of their colleagues are unaware of their work. In order to open the workshop to a wide array of ideas about teaching, we are encouraging faculty who would like to share their work and ideas with a larger audience to submit a proposal for a brief 15-20 minute presentation at the workshop.
In January 2007, the Carnegie Foundation for the Advancement of Teaching released a report on the state of legal education, entitled Educating Lawyers: Preparation for the Profession of Law. The Report challenged the ways that law schools, particularly in first year courses, divorce the reality of legal practice and skills from theory and doctrine. The Report concluded that law schools must develop in students "practical lawyering skills and understandings of ethical and moral considerations." The questions raised by the Carnegie Report continue to reverberate throughout the academy, including in the fields that comprise work law.
The subjects that traditionally comprise work law, including labor law, employment law, and employment discrimination, are a thriving practice area. Many teachers find it challenging to adapt the curriculum and the pedagogy of these law school courses to the practice of work law. Thus, we seek proposals addressing how work law teachers are responding to the ideas raised in the Carnegie Report, through teaching techniques, changes in course coverage, or other methods. Some work law teachers have used their classes as a vehicle to simulate the power dynamics in the workplace. Others might question whether the Report goes far enough in proposing reforms of curriculum or pedagogy. Others might believe the Report overstates the dichotomy between theory and practice. All of these perspectives are welcome.
One purpose for seeking proposals is to make widely available the pedagogical work and wisdom of law faculty, we will make available all proposals on this workshop's website unless you request that we not do so.
Interested faculty should submit a written description of the proposed presentation of about one single-spaced page. Please submit these materials by e-mail to email@example.com by November 1, 2008.
Gendered Violence and Work
Julie Goldscheid (CUNY) has just posted on SSRN her article Gendered Violence and Work: Reckoning with the Boundaries of Sex Discrimination Law (forthcoming 18 Colum. J. Gender & L. ___ (2009). Here's the abstract:
Workplace discrimination based on sex persists despite decades of anti-discrimination law. Domestic and sexual violence survivors' treatment at work often reflects a subtle form of sex discrimination that inevitably informs and distorts workplace decisions involving domestic and sexual violence victims, yet, in many cases, remains legally insignificant. This article proposes an approach that draws on the growing literature documenting cognitive bias. It argues that survivors' experiences at work should be recognized for the ways those experiences reflect subtle gender-based bias. The proposed approach would interrupt the operation of unconscious bias at the points where it most frequently operates and would require evaluation of the actual, rather than presumed, role of abuse. This approach would produce a fuller and more accurate account of discrimination while protecting employers' legitimate interests in both performance and safety.
June 3, 2008
Discrimination Suit against DOJ Civil Rights Division
Legal Times is reporting (free registration required) that a 13-year veteran paralegal, Joi Hyatte, in the Civil Rights Division has filed a suit claiming she was discriminated and harassed by managers who repeatedly passed her over for advancement because she was African-American. Hyatte is represented by David Vladeck and the Institute for Public Representation (Georgetown).
Hyatte's suit accuses ex-voting section chief John Tanner and former section 5 unit chief Yvette Rivera of subjecting Hyatte and "her African-American colleagues to numerous forms of discrimination and harassment." The complaint also says Tanner failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts — one white, the other black — in February 2007. Those attorneys "mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office" and made other derogatory remarks.
Tanner, who left Main Justice last month for the Alabama Law Institute, could not be reached for comment.
He got in trouble last fall when he made an infamous remark about the impact of voter ID laws on minorities. "Minorities don't become elderly the way white people do. They die first," Tanner told the National Latino Congress conference.
Just what you want to see in an agency designed to ensure equal voting rights in a country with a history of discriminating against African American voters, hmmm?
Another Group of Foxwoods Workers Rejects Union
We've posted before on the battle between the NLRB and Mashantucket Pequot Tribe Nation's sovereign immunity claim that the NLRA does not apply to Foxwoods casino. Daniel Schwartz at the Connecticut Employment Law Blog has an update on some recent developments. Despite previous victories, engineering and off-track betting workers have both recently voted against unionization--in both cases by a significant margin. Neither unit was necessarily representative of all workers, but the question remains whether this signals a more substantive shift in opinion among Foxwoods workers.
The legal battle involving game dealers is still pending before the NLRB, so it will be a while before we get an answer on that. But, things on the ground are obviously taking some interesting turns, so stay tuned.
Tavern on the Green Settles Harassment Suit
The NYT is reporting that Central Park's Tavern on the Green restaurant has agreed to settle a race/sex/national origin discrimination lawsuit filed last fall by the EEOC. The EEOC's press release said that the restaurant
engaged in severe and pervasive sexual, racial, and national origin harassment of female, black, and Hispanic employees. The sexual harassment included graphic comments and demands for various sex acts, as well as groping of women’s buttocks and breasts. The racial and national origin harassment included epithets toward black and Hispanic employees and ridiculing Hispanics for their accents. The restaurant also retaliated against employees for refusing to consent to and/or objecting to the harassment, according to the EEOC.
Managers in positions of authority allegedly participated in the misconduct. The consent decree will create a claim fund of $2.2 million to be allocated to victims of the harassment and/or retaliation. Additionally, the restaurant will establish a telephone hotline which employees may use to raise any discrimination complaints, distribute a revised policy against discrimination and retaliation, and provide training to all employees against discrimination and retaliation.
The restaurant opened in 1934, describes itself as “the highest-grossing independently owned restaurant in the United States with annual revenues in excess of $34 million and over half a million visitors a year.”
This lawsuit was part of the EEOC's E-RACE Initiative (Eradicating Racism and Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace, announced Feb. 28, 2007, by EEOC Chair Naomi C. Earp.
Settling was probably very wise from a PR standpoint. Still, since the management seems to have been hostile to so many groups, I wonder if the EEOC would have been successful in proving that the harassment was because of those employees' protected classes. The content of the harassment seems to support that, but an overly abusive workplace could be seen to bleed into an "equal opportunity" harassment situation, which courts have held does not violate Title VII.
Connecticut Governor Vetos Minimum Wage Bill
Connecticut Governor Rell, a supposedly moderate Republican, vetoed legislation last week that would have raised the state's minimum wage from $7.65 to $8.00 beginning January 1, 2009, and to $8.25 beginning January 1, 2010. She stated:
There is no doubt that families, particularly low income families, have been hurt by ou strained economy. We all feel the pinch when buying groceries, filling up the gas tank and heating our homes. Yet we must also realize that Connecticut employers face these same financial pressures and are having an extremely difficult time making ends meet.
Two thoughts: does Governor Rell really feel the pinch when buying groceries or is this just flat-out patronizing? Second, I guess we know in the Republican Party of Lieberman and Rell who comes first between low-income workers and employers.
The bill would have allowed hotels and restaurants to pay service employees and bartenders who customarily and regularly receive tips less than minimum wage, as long as tips make up the difference in order to offset the minimum wage increase.
Dan Schwartz at Connecticut Employment Law Blog has more and says a veto override is possible.
California House Passed Paid Sick Leave Bill
Last week, the California Assembly passed legislation that would permit employees who work in California to earn seven or more paid sick days in a calendar that can be used to recover from illness, care for a sick family member or recover from domestic violence or sexual assault.
The bill is called the Healthy Families, Healthy Workplaces Act of 2008 (A.B. 2716), and the Assembly approved the bill in a 43-25 vote. So far, Governor Schwarzenegger has not indicated his position on the legislation, which now goes to the Senate where it will be heard in June.
If signed into law, AB 2716 would make California the first state to require paid sick leave for employees. Only San Francisco and Washington, DC, have passed mandatory sick leave legislation.
Hat Tip: CCH Workweek
After-Acquired Evidence of Resume Fraud Does Not Bar Sex Discrimination Claim
CCH Workweek has this report on a recent unanimous decision by the New Jersey Supreme Court on after-acquired evidence in employment discrimination cases:
After-acquired evidence of resume fraud will not bar workplace discrimination claims
In a matter of first impression. [A] unanimous New Jersey Supreme Court held that "after-acquired evidence of resume fraud" will not bar a workplace discrimination claim or limit emotional distress or punitive damages under the New Jersey Law Against Discrimination (NJLAD).
Accordingly, a sheriff's officer who failed to disclose an expunged conviction on his job application was not prohibited from pursuing his disability-based constructive discharge and hostile work environment claims under the Act. However, evidence of the conviction can be used to limit or potentially eliminate economic damages, including claims for back pay and front pay if that information would have resulted in the employee's discharge. . . .
While the NJLAD states that individual supervisory defendants cannot be personally liable for discrimination under the Act, they can be held liable for "aiding and abetting" in the discriminatory conduct. The officer presented evidence that the sheriff and undersheriff "failed to act to protect [him] or…effectively respond to his complaints of discrimination," but the supreme court found the evidence insufficient to show that they aided and abetted in the harassment.
This appears to be consistent with Title VII after-acquired evidence law under McKennon (but Melissa Hart, after-acquired evidence guru, can correct me if I'm wrong).
The case is Cicchetti v Morris County Sheriff's Office (NJ May 28, 2008) (free registration required).
UAW Files Complaint on Universal Smoking Ban at Caterpillar
In response to Caterpillar banning smoking on all of its US properties, effective June 1, the United Autoworkers (UAW) has filed a complaint with the NLRB. As the Chicago Tribune points out, the issue is whether the workers' right to smoke has been part of the sixty-year old bargaining agreement and that the company needs to bargain with the union over the work-rule change.
"Caterpillar labor relations manager Dan Day said in a statement that the company 'cares about the health of its employees and wants to ensure that everyone who works on or visits Caterpillar property has access to the healthiest and safest work environment possible.'"
Regardless of the motives of Caterpillar in undertaking this initiative, I would say the issue of smoking in the workplace affects the terms and conditions between employer and employee and should be considered a mandatory subject of bargaining, wouldn't you?