July 25, 2008
NLRB GC Memo Addresses Political Activitiies By Workers
Thanks to Dennis Walsh for pointing out to me this piece in the July 23rd BNA Daily Labor Report (subscription required) about a new General Counsel Memo by Ronald Meisburg about political activity by workers:
National Labor Relations Board General Counsel Ronald Meisburg July 22 issued a guideline memorandum describing a framework for analyzing unfair labor practice charges involving discipline of employees who engage in political advocacy, such as participating in pro-immigration demonstrations.
Employees' right to engage in concerted activity for "mutual aid or protection" is protected under Section 7 of the National Labor Relations Act, Meisburg said in the memo to regional office personnel (GC 08-10). After reviewing U.S. Supreme Court and board precedent, Meisburg wrote, he found that the test for determining whether political advocacy is protected under Section 7 is "whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees."
However, Meisburg said qualifying political advocacy can lose the protection of the NLRA if it is carried out by unprotected means. Political advocacy that meets the basic test, is nondisruptive, and takes place during the employee's own time and in nonwork areas is protected, the general counsel said. But he found that engaging in qualifying political advocacy while on duty, and leaving or stopping work to engage in it, "is subject to restrictions imposed by lawful and neutrally-applied work rules."
Personally, I am troubled by the direct nexus test advocated for here. I think Eastex and its progeny give more leeway to employees to advocate for political issues that may impact the workplace.
This proposed test also gives with one hand and takes away with another: it protects political activity related to employment, but then say a worker can be fired if he or she walks off the job to support that political activity? Isn't the NLRB charged with protecting Section 7 activity and not protecting employers?
New Collar Workers and Hourly Pay
PlanSponsor.com has a NewsDash this morning about how younger workers (18-29) may prefer to be hourly workers than exempt, salaried workers:
For many workers in the 18 to 29-year-old age group, being in an hourly job is just fine. According to SHRM, a survey by SnagAJob.com found that 48% who do not have a college degree expect to be hourly workers for their career, while 30% expect to be salaried employees. One-quarter of those with college degrees are career hourly workers or intend to pursue a career as an hourly employee; 62% expect to be salaried, the poll found.
The obvious question is whether this is truly a "choice" to be hourly employees or because respondents do not understand the advantages or disadvantages between being exempt and non-exempt from the FLSA, How about the ability of the employer to change the quantity and quality of hourly worker's work and the lack of independent discretion that normally comes with non-exempt employment?
July 24, 2008
Lurie's Recent Employee Benefits Articles
The first article, It's a PIP - Or Is It?, concerns "an idea that has been wafting about in legislative halls and hearing rooms, in print and electronic media, and in assorted other venues for several years is to make employers in small businesses set up a payroll deduction facility for their employees not covered by employer-sponsored retirement plans, for the purpose of easing the making of contributions to an IRA established by or on behalf of the employee."
The second one, All in the Family on Foley Square, Lurie discusses the 2nd Circuit's recent cash balance plan decision in Hirt v. The Equitable Retirement Plan:
The 2nd Circuit just resolved a family squabble among its dist rict court judges – five in the SDNY and three in the Connecticut district – involving an age discrimination issue that has had the pension community across the country in a tumult for five years. The appeals court affirmed the judgments of two courts of the Southern District of New York in separate cases, Hirt v. The Equitable Retirement Plan and Bryerton v. Verizon Communications, that had ruled that the cash balance plans at issue were not age discriminatory (2008 US App. LEXIS 14325). It thereby settled an issue that had split nine district cases in its circuit (5 in favor of the plans, 4 against), and in so doing sided with the three other circuit courts that had similarly upheld the plan sponsors positions, starting with the seminal decision of the 7th Circuit in the IBM case in 2006.
Finally, in the third one, Triple Play: Stevens to Roberts to Thomas or A View of LaRue, Lurie writes:
One thing that has distinguished employee benefits practitioners from the population at large in the US in the Spring of ‘08 is whom they prefer among the three – actually, what three they’re even talking about. For a remarkably large portion of the benefits community it’s not been McCain, Obama and Clinton, but Stevens, Roberts and Thomas, the latter three the Supreme Court justices who wrote the majority and two concurring opinions for a court unanimous only in its ultimate holding in the LaRue case1 decided this past February. Linda Greenhouse, writing in the New York Times recently on the pattern of recent rulings from the Supreme bench, said:
“The court is by nature an atomistic institution, its actions the aggregation of determinedly individual decisions.”
If ever words fit actions, those words fit the actions of the justices in LaRue, and she wasn’t even writng about that case. In a supposedly unanimous opinion of the nine justices, they wrote three separate opinions, agreeing only on the ultimate question, but otherwise wildly diverging -- in cohorts of five, two and two – as to why and to what effect.
Alvin brings his mastery and provocative take on all of these issues in these three articles. I'm quite sure he would like to hear individual's feedback.
Shapiro on Reserval Rates in Employment Disputes
Carolyn Shapiro (Chicago-Kent) has an interesting post up on the Empirical Legal Studies blog on reversal rates in employment disputes in three recent empirical articles:
An article recently posted on SSRN provides some interesting data about how employers and employees fare when arbitrators’ decisions are reviewed in court. In Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitration: An Empirical Analysis, Michael Leroy argues that the possibility of such review – especially when the arbitration clause provides for de novo review, as many do – creates a systematic advantage for employers. Leroy documents a growing number of bases on which courts (particularly state courts) vacate arbitration awards, providing more opportunities for successful challenges to arbitrators’ decisions. Perhaps most importantly, however, Leroy measures the rate of reversal of arbitrators’ decisions. Out of a dataset of 267 separate arbitration decisions, Leroy found that federal courts are routinely extremely deferential to arbitrators’ decisions, upholding decisions for both employers and employees at similar and extremely high rates. As a general matter federal courts upheld awards for employees at a rate of 85% and for employers at about 92%. In state courts, however, the picture is more complex . . . .
In Plaintiphobia in the Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, a 2002 article in the University of Illinois Law Review, Theodore Eisenberg and Kevin Clermont found that in federal civil rights employment cases that terminated between 1988 and 1997, defendants who appealed trial losses prevailed on appeal 44% of the time. In other words, where a defendant appealed a verdict, generally entitled to enormous deference, there was an almost even chance that the appellate court would reverse. In contrast, an employment plaintiff who appealed from a pro-defendant verdict had only a 6% chance of prevailing . . . .
In a more recent follow-up (blogged about here), Plaintiphobia in State Courts? An Empirical Study of State Court Trials on Appeal by Theodore Eisenberg and Michael Heise, examined the outcomes of more than 8000 trials and about 550 appeals from 46 large counties. They found that in general, plaintiffs fare worse on appeal than defendants and that the appellate courts are more deferential to bench verdicts than jury verdicts. Consistent with the first Plaintiphobia article and with Leroy’s findings, the plaintiff/defendant disparity was very stark in the context of employment cases – with 61.5% of verdicts for plaintiffs reversed and 38.5% of the verdicts for defendants reversed . . . .
The Plaintiphobia articles do not find strong evidence to support selection effects, and conclude that their findings are consistent with attitudinal effects – specifically that appellate judges believe (possibly erroneously) that juries are biased towards plaintiffs. Leroy attributes the disparities at least in part to the expansion of bases for reversal of an arbitration award – a doctrinal development. Moreover, there is the possibility of a snowballing effect on doctrine – the more pro-employer cases that are decided, the more pro-employer the law becomes.
I agree with Carolyn that "at minimum . . . these articles collectively raise questions about whether the appellate playing field is level for employers and employees."
Minimum-Wage Employees Get a Raise
The federal minimum wage rises today from $5.85 per hour to $6.55 per hour, en route to $7.25 per hour on this date next year. If you're reading this and you haven't received your pay hike, call the Department of Labor at 1-866-487-9243.
July 23, 2008
Congress Holds Hearings on DADT
The House Armed Services Committee is holding hearings today on the military's Don't Ask Don't Tell policy. Here is the story by John Cloud from Time.com.
From the story:
The hearings, called by a House Armed Services subcommittee, are likely to be more notable for the fact that they are being held at all rather than anything of substance they may produce. The simple fact that the hearings are taking place offers the most significant indication yet that the U.S. is finally reconsidering its strange policy of enforced hypocrisy that came to be called "Don't ask, don't tell." The hearings should also provide a delicate moment for Senator Barack Obama, who has said he opposes "Don't ask, don't tell" but is also reportedly considering one of its major architects, former Senator Sam Nunn, to be his running mate.
. . .
This congressional hearing will turn on the key question of whether the presence of out gays would hurt unit cohesion, discipline and morale. Earlier this month a pro-gay University of California think tank, the Michael D. Palm Center, issued a report authored by three retired generals and a retired admiral that studied that question for more than a year. The retired brass couldn't find any evidence that allowing gays to be open would hurt the military, but they did find some evidence that kicking gays out hurts. One heterosexual officer who just back from Iraq told the authors that "friction resulting from the prosecution of service members found to be gay is far greater than the friction that results from simply knowing a gay person."
Even if no concrete step is taken as a result of the hearings, at least the dialogue has been reopened.
Chamber of Commerce on EFCA
Picking up on our recent discussion about EFCA, BNA's Daily Labor Report (subscription required) has an article describing the Chamber of Commerce's recent statement on the bill (hint: they don't like it). The Chamber is apparently starting a campaign to fight the bill--or more accurately the predicted reintroduction of the bill sometime in the future.
I've previously stated some of my misgivings with EFCA--I basically view it as an imperfect response to a big problem in organizing drives--but many of the comments by the Chamber don't pass the laugh test. For example, it says that "[the bill] would completely
change the economics of union organizing . . . [and] would make it cost effective for unions to go after Main
Street businesses, small retail establishments, and industries that
have never experienced unionization before." That's necessarily bad, why? Oh right, because your group opposes unionization in any form, so any and all attempts to guarantee employees' right to unionize--which, last I checked, is still part of the policy of the NLRA--are bad.
And before the avalanche of union-intimidation comments is unleashed, remember that intimidation would still be unlawful under EFCA. If you're still concerned about the possibility of union intimidation, then I'll make this proposal: you agree to much harsher remedies for, and quicker resolution of, employer campaign misconduct and I'll agree to the same for union misconduct.
Hat Tip: Dennis Walsh
Collective Bargaining for Public Safety Workers
Earlier this month, Paul posted on the progress in Congress of the Public Safety Employer-Employee Cooperation Act. This proposed legislation would provide collective bargaining rights for law enforcement officers, firefighters, and emergency medical services personnel in state and local governments that do not already provide such rights. Charles Wheatley has a detailed analysis of the Act in the most recent edition of Local Government Law News.
Vacation Should Be a Right . . .
. . . says Robert Reich on today's Marketplace. I think this would make a fantastic topic for a law review article: compare the U.S. to the rest of the industrialized world, find us sorely lacking, and draft the proposed legislation.
EEOC Fact Sheet on Religion and Title VII
Some of the highlights from the BNA Daily Labor Report (subscription required) explaining different types of religious discrimination in employment:
Treating applicants or employees differently based on their religious beliefs or practices - or lack thereof - in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (disparate treatment);
Subjecting employees to harassment because of their religious beliefs or practices - or lack thereof - or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);
Denying a requested reasonable accommodation of an applicant's or employee's sincerely held religious beliefs or practices - or lack thereof - if an accommodation will not impose more than a de minimis cost or burden on business operations; and,
Retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone else's EEO matter), or opposition to religious discrimination (e.g., complaining to human resources department about alleged religious discrimination).
There is not much new here, but it is an attempt by the EEOC to put all current law in this area in one place. Importantly, "the 94-page . . . . revised compliance manual section tracks EEOC's own litigation on religious discrimination, describes relevant case law, and shows where EEOC's positions differ from those adopted by some lower federal courts. EEOC's regulations on religious discrimination, codified at 29 C.F.R. § 1605, are not affected by the new compliance manual section."
For the full document, go here.
July 22, 2008
ABA Section of Labor and Employment Law 2nd Annual CLE Conference
The ABA Section of Employment and Labor Law will be having its second annual CLE conference in Denver September 10-13, 2008.
And the host committee writes:
As the Denver Host Committee, we would like to encourage you to register for this conference. September is a beautiful time to visit Denver and Colorado, and we look forward to helping you have an enjoyable and memorable experience while attending the program and enjoying all our region has to offer.
The ABA Section of Labor & Employment Law has planned a tremendous program that includes top practitioners, networking opportunities and cultural events. In addition to the Section programs, the Host Committee would like to offer some alternative activities so that you will be able to take advantage of all that Denver and Colorado presents to a visitor.
Denver has a host of activities to keep you busy, including the 16th Street Mall (our mile-long pedestrian promenade lined with flower baskets, shops and outdoor cafes); the Colorado Rockies at Coors Field (home games with the Dodgers); Red Rocks Amphitheatre; Lookout Mountain (where Buffalo Bill is buried); our new Daniel Libeskind-designed Denver Art Museum; the Denver Museum of Nature and Science (the 4th largest museum of its kind in the U.S.); and the nation's largest park system (over 14,000 acres). From our State Capitol Building you can see 120 miles and spot 200 named peaks.
In less than an hour drive from Denver, you can experience spectacular Colorado. Half of Colorado is preserved in more than two dozen national parks, national monuments, national forests and state parks. This wilderness area is dotted with world class resorts and golf courses, whitewater rafting, hiking, biking, ancient Indian cliff dwellings, narrow gauge railroads and historic mining towns. There will be something for everyone to do.
We have compiled a list of local restaurants, tours, recreational activities, shopping areas and short trips to help you better plan your visit. This list can be viewed by visiting:
We look forward to seeing you in Denver!
ABA Section of Labor & Employment Law Host Committee
John M. Husband, Chairman
Chen and Sethi on Effects of Sexual Harassment Law
Daniel L. Chen (left) and Jasmin K. Sethi (right) have posted on SSRN their working paper on The Effects of Sexual Harassment Law on Gender Inequality:
Interpreting antidiscrimination law to forbid sexual harassment has been one of the key practical contributions of feminist legal theory. Unlike other employment laws, sexual harassment law is generally considered "good" social policy and has not come under fire for its potential negative consequences in the way that other employment protections, such as the Americans with Disabilities Act and maternity mandates, have. Yet, economic theory, at first glance, suggests that the potential effects of forbidding sexual harassment may be similar to those of other employment mandates. It may exacerbate gender inequality overall because it could be viewed as a tax on the hiring of women. If a compensating differential for harassment exists, wages for women who took jobs with harassment when it was legal should fall when harassment is illegal. We identify the impact of court made sexual harassment law on gender inequality by using the fact that federal judges are randomly assigned to appellate cases along with the fact that female judges and Democratic appointees decide sexual harassment cases differently than do male judges and Republican appointees. We find that sexual harassment law does not appear to exacerbate gender inequality. It increases female wages and employment relative to that of men. It also increases the proportion of female managers relative to male managers. These findings are more consistent with legal theories that characterize sexual harassment as a form of economic warfare by men battling to preserve their jobs than with compensating wage differentials models suggested by economic theory.
It's an interesting study.
NLRB to Issue Decisions Electronically
final Board and ALJ decisions will be issued electronically (E-Issuance) at the close of each business day by being listed on a daily e-docket sheet posted on the NLRB website. Parties who voluntarily register for electronic service (E-Service) will receive, immediately upon posting of the e-docket sheet, an email constituting formal notice of the Board’s or ALJ’s decision and an electronic link to the decision. The Board and ALJ decisions will then be posted on the NLRB website the first business day following posting of the e-docket sheet. Parties who do not register for E-Service will continue to receive service by traditional means, typically via U.S. Mail, which may take several days for delivery.
Letters are being mailed to parties instructing them how to register.
Fonts Gone Wild
Many apologies for the inconsistent fonts on recent posts. It's a technical glitch that we haven't figured out yet. Joe H. tells us it "might relate to a back-end migration taking place at TypePad right now." I'm not sure what that means, but I know he's working on it. We appreciate your patience.
July 21, 2008
Seventh Circuit Holds that Termination for Infertility Treatment Is Sex Discrimination
The Seventh Circuit an opinion released last week in Hall v. Nalco Co., in what seems to be a case of first impression at the circuit level, held that terminating a women for the time she took to undergo fertility treatments would violate Title VII as amended by the Pregnancy Discrimination Act. The PDA states in part, "[t]he terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." Pub. L. No. 95-555, 92 Stat. 2076 (1978).
The Supreme Court interpreted that provision in International Union U.A.W. v. Johnson Controls and held that employers could not consider women's fertility in making employment decisions. Female fertility, or the capacity to become pregnant, was a condition related to pregnancy, and thus covered by the PDA's definition of sex. Two circuits have considered a related issue, whether infertility is a condition covered by Title VII in the context of insurance benefits, and both distinguished Johnson Controls. In Saks v. Franklin Covey, the Second Circuit held that both men and women could be infertile, and procedures are performed on women to treat both male and female infertility, so the insurance plan's lack of coverage was thus not gender discrimination. The court left open the specific question presented by the Hall case, about penalties for using leave to have infertility treatments. In Krauel v. Iowa Methodist Medical Center, the Eighth Circuit came to a similar conclusion, holding that "[p]regnancy and childbirth, which occur after conception, are strikingly different from infertility, which prevents conception."
The Seventh Circuit found that Hall's situation was governed by Johnson Controls and distinguished the benefits cases:
Nalco’s conduct, viewed in the light most favorable to Hall, suffers from the same defect as the policy in Johnson Controls. Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure. . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.
Because adverse employment action based on childbearing capacity will always result in “treatment of a person in a manner which but for that person’s sex would be different,” . . . Hall’s allegations present a cognizable claim of sex discrimination under Title VII.
The court rejected the argument that Hall had made that infertile women were a class protected by Title VII.
One thing that puzzled me about the court's reasoning is the assertion that those terminated for taking time off for undergoing IVF will only be women. Men may sometimes need to take time off of work to participate in IVF or other fertility processes. For example, there are some surgical or at least invasive procedures that men sometimes undergo in combination with the in-vitro fertilization or intra-uterine insemination procedures that women undergo. One situation is where live sperm have to be retreived directly from the testes. At the same time, those procedures are not time sensitive in the way that the procedures that women undergo are, and so perhaps it's not inevitable that men will have to miss work for them. Or perhaps the court was being very specific about what it meant to "undergo IVF," defining that implicitly only to the parts of the process that are performed on women.
Even though the Seventh Circuit held that it was infertility plus gender differentiation that made this fall under Title VII's prohibition, the decision still seems inconsistent at least with Krauel's holding that infertility is not a medical condition related to pregnancy. And that could have far-reaching effects, as will the other important piece of analysis, that because the fertility procedures (at least those at issue) all take place within a woman's body, penalizing a person for having the procedures will be penalizing the person because of sex. Those lines of analysis impact how courts have viewed the issue of prescription contraception coverage. In fact, it may create a circuit split with the Eighth Circuit, which last year, in In Re Union Pacific Railroad Employment Practices Litigation extended Krauel and held that denial of coverage for prescription contraception, even though it only exists for women and only operates on women's bodies, is not discrimination under Title VII. The court held that contraception is not related to pregnancy because it is a medical treatment "only indicated prior to pregnancy" and prevents pregnancy from even occurring.
I foresee more litigation related to infertility and contraception in the future.
Government's Failure to Fufil Promise to Sick Nuclear Workers
The Rocky Mountain News has a special investigative report on the government's system for compensating Cold War-era nuclear workers who are now sick because of exposure to toxins on the job. The report is chilling in its description of the callousness of the government--including the Department of Labor, which has recently had another public airing of its failure to enforce the law. A very brief list of some of the paper's findings:
- Only one in four sick workers or their survivors has been compensated, according to the labor department's own statistics. Some 165,000 claims have been filed, but fewer than 43,000 have been paid — and even then, it has taken an average three years to qualify.
- The labor department delayed awards to some claimants until they died. One in 17 sick workers or survivors with valid claims — more than 1,200 people nationwide — died before they received their benefits. Even some of the claims that by law should be compensated automatically are being inexplicably delayed or denied.
- Millions of dollars have been spent redoing technical work that was faulty, while top labor department officials directing the program have collected tens of thousands of dollars each in bonus money. Officials refused to explain why the bonuses have been paid. Meanwhile, two out of every three claims sent for scientific analysis — at the National Institute for Occupation Safety and Health — have had to be re-examined or redone.
- Program officials ignored the law and their own rules. They changed rules midstream so claimants who had been told they would receive compensation were instead denied.
- Claimants who publicly criticized the program experienced perplexing delays, with evidence suggesting that their activism was held against them.
- Claims were manipulated and claims examiners were encouraged to deny claims.
The report contains numerous examples of some of these problems, including one former employee whose work on an organization set up to help claimants was cited by DOL as evidence that she wasn't really that sick (the DOL has very recently backtracked on this). The problem appears to be coming from higher officials, who place a lot more emphasis on catching potential fraud (despite not have a single verified case of fraud in the seven years its run the program). These efforts include discussions about whether to conduct surveillance to see whether one claimant was fishing and another discussion about whether to send in someone undercover to spy on a claimant's meeting with his health care provider.
Because of the proximity of Oak Ridge, I've been well aware that there were problems with this program. However, the extent of the problems were shocking.
I strongly encourage you to read the full report--although the information and some of the pictures are really disturbing.
More Bad News On The Definition Of Discriminatory Soliciation Policies
The NLRB's new rule in Register-Guard on how to determine when an employer unlawfully discriminates against protected activity was bad. Now the Second Circuit is piling on. In Salmon Run Shopping Center v. NLRB, the court adopted the Sixth Circuit's rule on what is an unlawfully discriminatory policy against non-employee solicitations. The case involved a union's dispute with a non-union contractor working on a new store (Dick's) in a mall. The union asked the mall management whether they could set up a table to distribute literature. Although the mall initially proposed two dates, they ultimately denied the request, stating "“[w]e welcome civic, charitable, or other organizations to solicit in the common areas of the mall when the solicitation will benefit both the organization and our tenants . . . [but] [b]ased upon these criteria, we are unable to grant your application at this time.” The Second Circuit denied the NLRB's finding that this policy unlawfully discriminated against protected activity (although the court conceded that protected activity was involved, although held that it was weak):
We note that the Sixth Circuit has construed Babcock’s discrimination exception to mean “favoring one union over another, or allowing employer-related information while barring similar union related information.” Sandusky Mall Co. v. NLRB, 242 F.3d 682, 686-87 (6th Cir. 2001). This interpretation has found favor with the Fourth Circuit, which has expressed its “doubt that an employer’s approval of limited charitable or civic distribution while excluding union distribution constitutes discrimination.” Be-Lo Stores, 126 F.3d at 284.
The focus of the discrimination analysis under section 7 of the Act must be upon disparate treatment of two like persons or groups. . . . The standard for assessing discrimination must take account of the general rule that a private property owner need not provide a forum for expression on its property and may be arbitrary and inconsistent in its selection of speakers. . . .
To amount to Babcock-type discrimination, the private property owner must treat a nonemployee who seeks to communicate on a subject protected by section 7 less favorably than another person communicating on the same subject. The disparate treatment must be shown between or among those who have chosen to enter the fray by communicating messages on the subject, whether employers or employees. Under this standard, a mall operator could not allow Dick’s to defend its contractors’ use of carpenters who were paid below area standard wages but not allow the Carpenters’ Union to tell its side of the story. It could not allow a competing union to distribute organizational literature but preclude the Carpenters’ Union from doing so. The solicitation of Muscular Dystrophy donations by firefighters or the distribution of educational promotional materials on Higher Ed Night do not serve as valid comparisons to the Carpenters’ Union distribution of literature touting the benefits of its apprenticeship programs or decrying the failure of a mall tenant to pay area standard wages. Only the “rare case” satisfies Babcock’s inaccessibility exception, Lechmere, 502 U.S. at 537, and it may be that the same holds true under our interpretation of the discrimination exception.
One of the most disturbing lines in the case is the court's statement that the burden on unions to show discrimination is the same burden as showing inaccessibility under Babcock/Lechmere. As anyone who's looked into this area knows, that would essentially eviscerate the discrimination analysis, as inaccessibility is almost never found.
Moreover, this limited view of discrimination guts the balance that--even under Lechmere--is supposed to occur. The court hold that the protected activity is "weak," yet makes no attempt to weigh the strength of the employer's property interest. When you peel back cases like this, the real motive looks to be a desire not to have any union communications rather than concern with non-business use of its property. And no matter what you feel about such communications, they are still protected under the NLRA. In short, I think that this definition of discrimination is inconsistent with the NLRA and Supreme Court precedent (although I doubt the current Court would agree). Further, this issue shows what a mess the entire solicitation jurisprudence has become. There are many ways to address that--one of my suggestions is here--but, whatever new Board comes in might want to put this on their radar screen.
Sex as a Major Life Activity in the Cancer Context
The D.C. Circuit has held in Adams v. Rice (DC Cir 07/18/2008) that sexual relations is a major life activity under the Rehabilitation Act of 1973 in a case involving a women with a record of breast cancer. And remember that the same definition for disability exists under the ADA as well.
From Ross Runkel:
Adams sued the employer for violation of the Rehabilitation Act (RA) alleging employment discrimination based on her "record of" a disability. The trial court granted summary judgment in favor of the employer. The DC Circuit reversed.
After passing the foreign service exam and the medical exam, Adams developed breast cancer, was treated surgically followed with tamoxifen pills and check ups, was declared cancer free by her treating physician, but was denied appointment based on her medical condition. . . . .
The court found (without employer opposition) that breast cancer was an impairment. Based on the statute's text, the Supreme Court's reasoning in Bragdon v. Abbott, 524 US 624 (1998), and a hefty dose of common sense, the court held that engaging in sexual relations qualified as a major life activity under the RA. Noting that the employer did not challenge Adams's assertion that she was substantially limited in her ability to engage in sexual relations, the court concluded that the employer conceded, at least for summary judgment purposes, that Adams's claimed impairment did substantially limit her in a major life activity.
The court stated that the RA was a remedial statute designed in no small part to protect cancer patients from employment discrimination which should not be interpreted to exclude cancer patients who experienced few limitations on their life activities until they began the often grueling process of surgery, radiation, and/or chemotherapy.
The DISSENT argued that while Adams had an impairment (breast cancer), she offered no evidence that her impairment substantially limited her in a major life activity at any time before the alleged discriminatory acts occurred.\
This argument between the majority and dissent is one that was also fought out in the AIDS context in Bragdon v. Abbott. The issue is whether you have to show for that individual specifically that their ability to engage in sexual relations was substantially limited by her impairment or whether the disease itself, without a specific individual showing, suffices to meet the substantial limitation test.
It is unclear whether this case is unusual because the employer apparently conceded the substantial limitation point or whether the court is making a larger point about breast cancer impairment. I think the former, as cases since Bragdon, including the Sutton triology of 1999, make clear that the finding of disability under the RA or the ADA should be based on an individualized, holistic assessment of the individual's disability and not on per se categories of disability.
And to whether sexual relations is actually a major life activity, I guess it depends on whether you are married or not . . . .
Maryland Domestic Workers' Political Victory
It's apparently labor & employment day at the Washington Post, as they have another interesting article. This one discusses a grass-roots group of domestic workers in the Washington, DC area and their ability to get Montgomery County, MD to enact legislation granting such workers certain protections:
Most Sundays for the past six years, about 25 live-in nannies and housekeepers from across the Washington area have gathered in Silver Spring to share stories of mandatory six-day workweeks, 14-hour days and salaries that amount to as little as $1 an hour. Calling themselves the Committee of Women Seeking Justice, they gather in a circle and commiserate in English, Spanish, Hindi and French. Among the topics: no sick days, little overtime pay, feeling "on call" at all hours and sleeping on basement floors. Several have shared stories of having been kept as modern-day slaves, organizers said, rarely allowed out of the house and never seeing a cent. . . .
What began as an informal support group soon blossomed into a political movement for workers' rights. After four years of petition drives and appealing to local lawmakers, the group claimed a key victory last week, when the Montgomery County Council approved what are believed to be among the most far-reaching labor protections for domestic workers in the country. A coalition of 31 religious, labor and community organizations provided legal advice, political savvy and emotional support, organizers said, but it was the passion of these women that sustained the cause. . . .
The legislation, which County Executive Isiah Leggett (D) has said he will sign, will require Montgomery employers to offer written contracts to nannies, housekeepers and cooks working at least 20 hours a week. The contracts will have to spell out wages and other benefits. The bill also requires that live-in employees have their own bedroom, equipped with a lock, and "reasonable access" to a bathroom, kitchen and laundry room. Montgomery's Office of Consumer Protection will enforce the measure and may fine violators as much as $1,000. The legislation fell short of the group's goal of a "domestic workers bill of rights" that would guarantee health insurance, paid vacation time and sick days, among other benefits. But "it shows that their work is valuable," said Jessica Salsbury, a staff attorney for Casa of Maryland, an immigrant advocacy group that hosts the weekly meetings and spearheaded the legislation. . . .
As domestic workers, they are excluded from most federal labor protections, including those that mandate safe workplaces, prohibit retaliation for unionizing and outlaw discrimination based on race or religion, Salsbury said. Their lack of legal standing has deep historical roots, she said, hearkening back to the notion that domestic work was inferior because it was traditionally done by slave women. Unlike Virginia and the District, Salsbury said, Maryland entitles them to overtime pay. . . .
After a year or so of sharing their plight, committee members and Casa organizers decided in 2004 to push for legal rights. The group began meeting with Montgomery council members and spending Sundays fanning out to downtown Silver Spring and Metro stops to gather signatures on petitions calling for certain guaranteed benefits, De Simone said. During the week, they circulated petitions on buses, at playgrounds, in churches and at their English classes. The women collected at least half of the approximately 4,000 signatures supporting the legislation, De Simone said.
The story also gives several anecdotes, including one involving a law student. Moreover, as Dennis Walsh noted to me, it shows the growing importance of groups like Casa and their ability to prompt changes at the local level (see Paul, I can be reasonable sometimes).
Hat Tip: Dennis Walsh
More Evidence Of Our Broken Immigration System
I suppose this comes as no surprise, but the Washington Post has an article putting some of the troubles with immigration enforcement in context. It chronicles ICE's over ten-fold increase in the use of criminal, rather than administrative, arrests over the past five years. But as you look at the numbers that the Post helpfully provides, it's apparent that virtually all of the increase is due to arrests of employees--not employers:
A three-year-old enforcement campaign against employers who knowingly hire illegal immigrants is increasingly resulting in arrests and criminal convictions, using evidence gathered by phone taps, undercover agents and prisoners who agree to serve as government witnesses. But the crackdown's relatively high costs and limited results are also fueling criticism. In an economy with more than 6 million companies and 8 million unauthorized workers, the corporate enforcement effort is still dwarfed by the high-profile raids that have sentenced thousands of illegal immigrants to prison time and deportation. . . .
In the first nine months of this fiscal year, U.S. Immigration and Customs Enforcement (ICE) made 937 criminal arrests at U.S. workplaces, more than 10 times as many as the 72 it arrested five years ago. Of those arrested this year, 99 were company supervisors, compared with 93 in 2007. . . .
"If you want law enforcement, you have to have laws that are enforceable," said Doris M. Meissner, who headed the former Immigration and Naturalization Service under the Clinton administration. The 1986 law banning the hiring of illegal immigrants, she said, "has just been chronically flawed from the time it was passed."
Raids against Swift packinghouses in six states in December 2006 highlight the administration's strategy to seek criminal indictments and felony convictions against corporate violators. An earlier approach that relied on administrative fines and forfeitures was increasingly dismissed by executives as a cost of doing business. . . . [But, e]nforcement disparities were displayed vividly May 12 when ICE agents swept into an Agriprocessors Inc. kosher meatpacking plant in Postville, Iowa. They arrested 389 illegal workers; 270 were convicted within days in expedited court proceedings at a cattle fairgrounds; and many were sentenced to five months in prison, mostly on criminal document-fraud charges.
By contrast, ICE agents arrested two supervisors and issued an arrest warrant for a third man on July 3. The firm remains in operation.
This highlights not only the broad problems with our current immigration system, but also the insanity of the Court's thinking in Hoffman Plastics. The idea that making it even cheaper for employers to hire undocumented workers (by banning backpay for such workers) actually supports our immigration laws makes no sense at all.
Hat Tip: Dennis Walsh