August 8, 2008
Jail-Time For Workers' Compensation Violation
Given how few real remedies there are for labor and employment law violations, I take a bit of guilty pleasure when company officials push their luck so far that they end up in jail. This example is from New York, which has a recent law that makes it a felony to fail to get workers' compensation coverage (although their is an affirmative defense if an employer to reasonable steps to obtain coverage). The story from BNA (subscription required):
The owner of a New York City nursing home has been arrested on felony charges of failing to secure workers' compensation insurance, New York Attorney General Andrew M. Cuomo (D) announced Aug. 7. According to Cuomo, defendant Helen Sieger, president and chief executive officer of the Kingsbridge Heights Rehabilitation and Care Center in the Bronx, is the first employer to be arrested under a 2007 state workers' compensation reform law that, among other things, made it a felony for employers to fail to secure the coverage. Under prior law, the crime was a misdemeanor, Cuomo said.
Sieger was charged with failing to secure coverage for more than 400 workers at the facility, from May 2007 through June 26. On June 19, the state Workers' Compensation Board issued a stop-work order, due to take effect June 30, based on Sieger's failure to obtain insurance. The order would have brought the immediate closing of the nursing home and emergency removal of the patients. Although Sieger obtained coverage June 27, she still faces charges for the period in which coverage had lapsed, according to Cuomo. . . .
The 300-bed facility has been mired in a multi-year labor dispute with 1199 SEIU United Health Care Workers East, the New York City-based Service Employees International Union local. The local began an unfair labor practices strike against Kingsbridge Feb. 20, claiming that the facility had failed to make benefit fund payments, conducted surveillance of union members, and failed to abide by a contract agreement. . . .
In March, 1199 President George Gresham called for an investigation by Cuomo's office into allegations that Sieger had misappropriated state funds and violated the state charities law.
Yet another example of a way in which unions can exert pressure outside the NLRA framework.
Hat Tip: Dennis Walsh
Recently Published Scholarship: Arbitration
University of Michigan Journal of Law Reform
Volume 41, Issue 4, Summer 2008
Symposium: Empirical Studies of Mandatory Arbitration
- Omri Ben-Shahar, Introduction, How Bad Are Mandatory Arbitration Terms?, p. 777.
- Theodore J. St. Antoine, Mandatory Arbitration: Why It's Better Than It Looks, p. 783.
- Christopher R. Drahozal, Arbitration Costs and Forum Accessibility: Empirical Evidence, p. 813.
- W. Mark C. Weidemaier, From Court-Surrogate to Regulatory Tool: Re-Framing the Empirical Study of Employment Arbitration, p. 843.
- Theodore Eisenberg, Geoffrey P. Miller, Emily Sherwin, Arbitration's Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts, p. 871.
MM on IVF and the PDA
How's that for an alphabet soup title? Our own Marcia McCormick was recently quoted in an article in "Business Insurance" on the Hall v. Nalco case. In that case, the court held that the Pregnancy Discrimination Act protected an employee who was fired for going through IVF infertility treatments. Marcia was quoted on the impact of the decision:
"I think this decision is very significant for defining more clearly what conditions are related to pregnancy" and it will be influential, said Marcia L. McCormick, an assistant professor at Samford University's Cumberland School of Law in Birmingham, Ala.
Our ever-hospitable friend at Doorey's Workplace Blog has taken up the invitation to shed more light on the pending Canadian Supreme Court case involving Wal-Mart's closing of a store that recently voted to unionize that we posted about yesterday. Not surprisingly, his post is very informative; here's a taste:
The main facts for the purpose of the law cases are: (1) the union was certified by a statutory card-check in Sept. 2004; (2) the parties began bargaining, but bargaining stalled; (3) the union applied for first contract arbitration under the Quebec labour legislation, and on Feb. 9, 2005, the Ministry of Labour appointed the arbitrator; (4) that same day, Wal-mart announced it was permanently closing the store and terminating all of the employees; (5) in late April, 2005, all of the employees were dismissed and the store was closed. . . .
In both [Wal-Mart cases before the Court], the dismissed employees argued that the store closure and the dismissals were in response to unionization, and that this violated the employees’ rights under s. 15 of the [Quebec Labour] Code, which prohibits a dismissal in response to the lawful exercise of union activities. They relied on a reverse onus provision in the Code, which provides as follows:
17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.
Therefore, a key issue in the cases is whether a permanent closure is “a good and sufficient reason” for the dismissals. If it is, then Wal-mart will have successfuly rebutted the presumption.
The Supreme Court has agreed in an earlier case . . . that Quebec labour law does not prohibit the closure of a business, even if the reason for the closure is based on “socially reprehensible considerations” . . . [s]o, it came as a bit of surprise that the Quebec labour board found in favour of the employees in one of the two cases (Johanne Desbiens). . . .
The Supreme Court has agreed to hear appeals from both cases, presumably on a consolidated basis. The case has some intrigue in light of recent SCC decisions. Firstly, the Court ruled recently that the Canadian Charter of Rights protects a right to unionize and a (limited) right to collective bargaining. One question raised in these cases was whether an interpretation of s. 17 that permits employers to undermine the exercise of these fundamental rights by simply closing the workplace and firing everyone is consistent with the new, broader interpretation of freedom of association crafted by the SCC.
Interesting stuff. I find the contrast between the statutory provision, which appears to give far more protection than the NLRA, and the caselaw, which sounds a lot like the American Darlington rule, particularly fascinating.
Definitely read Doorey's full post--it's worth it (and includes a request for Paul to translate).
BNA's L&E Supreme Court Roundup
BNA's Daily Labor Report (subscription required) has a roundup of this term's labor and employment Supreme Court decisions. If you're reading this, the article won't provide any new info other than additional commentary on the cases. However, it's good one-stop shopping for all of the decisions this term. As a bonus, they have a chart summarizing all of the decisions--perfect for people like me who can't seem to remember case names.
Check it out.
Another Survey on Working Women and Families
Friend of the blog Dana Nguyen sends us this blog posting from Crooked Timber. The title, "Working Women Hurt their Families" sums up what some people will conclude from a study by sociologists at Cambridge, which appears in Women And Employment; Changing Lives And New Challenges. The authors analyzed a survey done in the 1980s, 90s, and earlier in the 2000s. In each survey,
samples of between 1,000 and 5,000 people were asked to say whether they agreed or disagreed with a number of statements. Statements such as "A husband's job is to earn income; a wife's to take care of the children," were designed to test their overall views on gender equality. Others, such as "Family life suffers if a woman works full time," examined whether they considered maternal employment as harmful to children or families.
The authors concluded based on the responses that public support (particularly in the US--the survey was also administered in the UK and Germany) of women working peaked in the 1990s and that current views were more that women working outside the home harmed children or families. Ingrid Robeyn's post critiquing the survey's methodology is excellent. From the post:
I don’t think one has to be a specialist in survey design to see some problems with [asking respondents whether they agree or disagree with the] statements. They are incredibly blunt and can be interpreted in many different ways. What does it mean, that ‘family life suffers’? It can mean anything from children undoubtedly not getting enough attention from their parents, or always eating prefab meals (both which I’d consider significant harms to children), to children sometimes not having a healthy evening meal with one or both of their parents but rather with a loving relative (which I’d consider no harm at all). Similarly, we don’t have other information apart from the information given by the statement. What kind of full-time job does the mother have? A job which makes her come home totally stressed out, or a job which gives her ample opportunity for self-development and which is a source of satisfaction? A job for 36 or 44 hours a week? A job which has flexible hours allowing her to do some of the work in the evenings when the children sleep, or one which has no flexibility at all? And what about the partners/fathers? Is there a caring father around, and how many hours does he work? Is there another caring family member or friend around? What age are the children? Do they have any special psychological or health needs? All these things matter hugely if one wants to answer the questions whether full-time maternal (and paternal !) employment harm children. We don’t know how respondents interpret and contextualise these blunt statements, and hence we don’t know what they agree or disagree with.
No doubt the scholars who did the study are aware of these limitations; and since they compare the responses over time, they can draw some conclusions related to change over time, assuming that the ‘contextualisation’ or ‘interpretation’ of these blunt statements has remained the same over time (which I’d doubt, though). What I would find really interesting are the results from qualitative research (like in-depth interviews) with the same people who have stated their opinions on these blunt statements, so that we get a little bit of a grasp of how to ‘decode’ the results of such survey research.
And of course one should add the obvious: opinions should not be confused with facts. Certainly not when it concerns such ideology-sensitive issues as gender inequality.
The comments are excellent, too. As for me, this is why I [insert sarcasm] am investing a large portion of my paycheck in a therapy fund for my children, to help remedy all that harm I am causing by working [end sarcasm].
August 7, 2008
A Busy Day for Wal-Mart
There are a couple of interesting labor-related Wal-Mart stories out today. The first relates to a post we did earlier on Wal-Mart's plans to conduct captive audience speeches and other lobbying efforts in an attempt to sway its employees against support of EFCA. BNA's Daily Labor Report (subscription required) is now reporting that Wal-Mart is denying any attempt to pressure employees to vote for a certain candidate (which is illegal). However, Wal-Mart admits that it was arguing against EFCA. That distinction apparently doesn't satisfy the group WakeUpWalMart.com, which is filing a complaint with the FEC. At issue will be whether Wal-Mart is merely engaging in lawful political communications or is advocating the election or defeat of a particular political candidate.
The second story comes from Canada and if you follow Wal-Mart's labor practices, you probably already know what this is about. As it is wont to do on the rare occasions when employees vote to unionize at one of its stores, the company shut down its store in Jonquiere, Quebec following a vote in favor of a union (this is similar--although with substantial legal differences--to the closing of a butcher unit in a U.S. store a few years back). Word now is that Canada's Supreme Court is going to hear the dispute. The union alleges that the closing was prompted by the vote; Wal-Mart argues that the move was made for financial reasons. I don't know much about the specific issues in this case, but perhaps our Canadian friend at Doorey's Workplace Law Blog will have more on this later.
Hat Tips: Alex Long & Dennis Walsh
Mantouvalou on Life After Work: Privacy and Dismissal
Update: Virginia tells us that a revised version of the paper, under the title "Human Rights and Unfair Dismissal: Private Acts in Public Spaces," is forthcoming in the Modern Law Review in early 2009.
This article addresses the issue of termination of employment because of the conduct of the employee in her leisure time, in the light of the human right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of domestic courts and tribunals on the matter, which is based on a spatial conceptualisation of privacy, is flawed. Having analysed the reasons why the current interpretation of privacy is wanting, the paper suggests a fresh approach, which rests on the idea of domination that the employer can exercise on the employee. The paper's proposition is based on an interpretation of the right to privacy as a right to control information, rather than a right to act in spatial isolation. It argues that life after work may lead to lawful dismissal only if there is a clear and present impact or a high likelihood of such impact on employment, whilst a speculative and marginal danger does not suffice.
This is an interesting comparative piece that highlight the similarities and differences between how European law and American law treat employer control of off-duty workplace behavior. I believe this conception of control over information is an important one, but I wonder whether the author is just moving the difficult decisions in this area to determinations on what is a "clear and present impact or high likelihood of such impact on employment." The question always comes down to whether a bright-line rule in this area might be better.
Recently Published Scholarship: Hofstra LELJ
Hofstra Labor & Employment Law Journal
Volume 25, No. 1, Fall 2007
- Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, p. 1.
- David G. Karro, Common Sense About Common Claims, p. 33.
- Thomas D. Brierton & Peter Bowal, The Creative Necessity Defense, Free Speech, and California Sexual Harassment Law, p. 63.
- Ellen Dannin & Gangaram Singh, More Than Just a Cool T-Shirt: What We Don't Know About Collective Bargaining--But Should--To Make Organizing Effective, p. 93.
- Naomi C. Earp, Forty-Three and Counting: EEOC's Challenges and Successes and Emerging Trends in the Employment Arena, p. 133.
- Maureen S. Binetti, Romance in the Workplace: When 'Love' Becomes Litigation, p. 153.
- Mark A. Carter & Shawn P. Burton, The Criminal Element of Neutrality Agreements, p. 173.
- John R. Bunker, An Offer They Can't Refuse: Crafting an Employer's Immigration Compliance Program, p. 199.
- Cynthia Estlund, Solidarity and Betrayal in the North Woods: A Review of Strike! by Julius Getman, p. 223.
- Michael Gibek & Joshua Shteierman, The "No-Match" Letter Rule: A Mismatch Between the Department of Homeland Security and Society Security Administration in Worksite Immigration Law Enforcement, p. 233.
- David L.Adamson, The Discharge of Sexual Harassment Judgments in Bankruptcy Court: An Attempt to Right a "Grave Injustice", p. 283.
- Sheila Hatami and David Zwerin, Educating the Masses: Expanding Title VII to Include Sexual Orientation in the Education Arean, p. 311.
Secunda on State Labor Legislation
Congratulations again to Paul for his essay in yesterday's National Law Journal No Obstacle to WFA (subscription required). Paul writes:
State legislators should pay attention to the largely unnoticed U.S. Supreme Court decision in Chamber of Commerce v. Brown this past June, which eliminated significant rights of employees to form and join unions. The decision held a California state law prohibiting employers from using state money to oppose or promote unionization to be pre-empted by the National Labor Relations Act (NLRA). Although the majority decision by Justice John Paul Stevens is disappointing, states should still be able to enact Worker Freedom Act (WFA) legislation, which would ban anti-union, captive-audience meetings by employers with their employees during labor-organization campaigns. To understand why, a closer examination of Brown's reasoning is necessary.
It Ain't Easy Being a SOX Whistleblower
Thanks to Richard Moberly (Nebraska) for putting out to me that the Fourth Circuit ruled against the first whistleblower (and only one of 6) to have won a case in front of an ALJ in a Sarbanes-Oxley Act (SOX) whistleblower act. The case, Welch v. Chao, upheld the ARB’s decision to overturn the ALJ. The opinion can be found here.
BNA writes that the:
Fourth Circuit affirm[ed] a ruling by the Labor Department's Administrative Review Board that the Sarbanes-Oxley Act did not prohibit the firing of a bank executive who complained about accounting irregularities that could not reasonably have been considered violations of federal securities laws . . . . Writing for the court, Judge Motz says the ARB properly found that the former chief financial officer of Cardinal Bankshares Corp. failed to show that he engaged in activity protected by SOX because he failed to demonstrate how the company's conduct could have violated any of the federal laws referred to in the statute's whistleblower protection provision.
I am not an expert in this area like Richard, but from all I have read in this area it is nearly impossible for a whistleblower to succeed under SOX. Either procedural or substantive hurdles inevitably get in the way.
Which leads to the question of why these whistleblowers should even bother reporting in the first place? This state of affairs is consistent with the lack of First Amendment retaliation protection in the public workplace.
Posthuma & Secunda on American Workers Abroad
In today's Boston Globe, Farah Stockman writes about American companies employing American workers abroad through foreign subsidiaries. The effect is that the workers lose their employment rights under American law, and are protected, if at all, only under the law of the country in which they work.
"The company has put up a hurdle that is probably insurmountable, or is just not going to be worth it to fight," said Richard Posthuma, an international labor specialist at the University of Texas, El Paso.
The impact goes beyond denying satisfaction to those who want to sue. By lessening the threat of lawsuits, the practice makes it easier for US defense contractors to fire workers and deny them benefits they were promised in exchange for agreeing to undertake dangerous assignments, according to international labor specialists.
"What is considered appropriate in workplace discipline in the Arab world is not considered appropriate in the US," said Paul M. Secunda, associate professor at Marquette University Law School, who co-authored a book on international employee benefit law.
For the complete article, see US Workers in Mideast Find Hurdles in Local Courts.
August 6, 2008
Gillette on Law School Faculty as Free Agents
Here is the abstract:
The phenomenon of law professors changing jobs from one law school faculty to another - faculty free agency - has increased in recent years and appears to be part of a general phenomenon of increased mobility across academia. In this paper, I consider the consequences of free agency in law school markets. It is likely that law professors have benefited financially from free agency. Whether it has benefited law schools generally, or advanced the quality of legal education is another matter. The paper raises some issues that at least give reason for pause about free agency. The consequences of free agency have been similarly questioned in other industries, most notably professional sports. But studies suggest that the adverse effects that some predicted when free agency was officially instituted there have not materialized. Thus, in the absence of similar studies about academic free agents, one might claim that my concerns are overstated. But those studies are often most interesting because they focus on characteristics of professional sports that have little or no analogue in faculty markets. The market for professional sports differs from the academic market in ways that I suggest have significant effects on free agency. Academic free agency may have different, and more negative, impact in academia. To the extent that is true, law schools face a classic prisoners' dilemma in adjusting. Even if it would benefit legal education generally to constrain free agency, it is contrary to the interests of any law school to constrain itself unless competitors do the same. I conclude, therefore, with some practical ideas about how to address the negative effects of free agency.
I have written about the law professor lateral market in Tales of a Law Professor Lateral Nothing. But that piece was more of an examination of what it takes to be a lateral and how the process works. This piece, on the other hand, asks whether all this lateraling is beneficial.
I have to admit that I am skeptical that law professor free agency is a bad thing and may have a negative impact in academia, being a recent free agent myself. But I look forward to reading this paper to gather more insights on what the detriment could to be to law schools and faculty who engage in lateral hiring.
AFL-CIO Seeks National Commitment To Train High-Skilled Workers
BNA's Daily Labor Report (subscription required) is reporting on a new resolution by the AFL-CIO Executive Council seeking a national educational policy that would train and support workers for high-skilled careers. According to the DLR:
Pointing out that continuing job losses, rapid technological change, global competition, and stagnating wages and benefits are causing anxiety and uncertainty for today's workers and their families, the executive council said the United States needs a "cohesive national strategy that links substantial investment in job creation to an improved educational system and significant public resources directed toward skill development programs." . . . [International Association of Machinists President Tom] Buffenbarger said the United States today has given up on vocational training and there is no way for a significant portion of the population who wants to "work with their hands" to obtain training. He added that this is a huge problem because employers are having trouble finding enough skilled workers in the United States and are seeking workers from foreign countries because they are trained. . . .
The AFL-CIO statement calls for a number of actions at the national level including:
a national commitment to providing students with the basic skills and knowledge needed to further their education;
a national commitment to providing all Americans with access to post-secondary education including a vocational credential or industry certification that is financed through expanding funding for the Pell grant program and making that program more accessible to working adults and dislocated workers. This also should include expanding funding for apprecticeship programs and other workforce training and certification programs;
investment in sectors that are important to the national interest such as infrastructure, defense, green technology, aerospace, renewable energy, education and health care; and
improvement of coordination among the often isolated efforts of states, employers, unions, post-secondary institutions, and public schools.
One component also calls for the government to assist employers and unions in developing programs for subsidized onsite learning representatives who can help employees with career counseling and access to training needs. According to [Randi Weingarten, president of the American Federation of Teachers] this component is based on a similar program in England, where by law, unions have a training representative at the worksite to help workers who do not want to let their employers know they need more training. Some American companies such as Caterpillar Inc. already do this in the United Kingdom.
I completely agree that the U.S. must compete in the global labor market not by emphasizing cheap labor--a competition the U.S. will never win--but by emphasizing its skilled workforce. One thing I find interesting in this move is the AFL-CIO's call for the government to take the lead. It could, instead, try to market its services by establishing such training on its own--although, perhaps the union should be credited with seeking action that would benefit a much larger number of workers.
Harthill on Bullying in the Workplace: Lessons from the United Kingdom
Susan Harthill (Flordia Coastal) sends word of her newly published article in the Minnesota Journal of International Law: BULLYING IN THE WORKPLACE: LESSONS FROM THE UNITED KINGDOM.
Here is the abstract:
This comparative article explores how the United Kingdom has tackled the problem of workplace bullying with the goal of drawing lessons for the emerging U.S. workplace bullying movement. In stark contrast to the U.S., the U.K. has been actively identifying and tackling workplace bullying since 1997 at the grassroots, political, organizational, and legislative levels. This article describes the development of the notion of a “dignitarian workplace” in the U.K. even in the absence of a dignity tradition, and argues that the U.K. provides useful insight for the U.S. at this formative stage of U.S. workplace bullying law. The most useful lesson is that the U.S.’s lack of a dignity tradition need not be fatal to the workplace bullying movement. In the U.K., employees have successfully utilized anti-stalking legislation to obtain legal relief against their employers for workplace bullying. This potential for litigation has, in turn, spurred organizational change. In addition, recognition of the societal as well as individual costs, not surprisingly, appears to have been another impetus behind trade union and government-funded initiatives to tackle the problem of workplace bullying in the U.K.
Learning from that experience, this article suggests that governmental and management recognition of the widespread nature of the problem is the first step in tackling workplace bullying. This article proposes that employer self-regulation and new workplace bullying legislation would have a better chance of success in the U.S. if preceded by efforts to educate legislators and employers on the individual and societal costs of workplace bullying. This article further proposes that legislative efforts can be bolstered by advocating for bills authorizing studies of the effects of workplace bullying. This approach therefore advocates more effective engagement of trade unions, management groups, and legislators to survey and define the problem of workplace bullying as an initial step in tackling workplace bullying in the U.S.
Good stuff and an issue I think needs more attention in this country. As the article is not on-line yet, you can either access it on one of the electronic databases or contact Susan for a reprint.
Divided EEOC Approves Changes to Strategic Plan
According to the BNA Labor Relations Reporter (subscription required), the EEOC has approved changes to its Strategic Plan for 2007 to 2012. The vote was split along party lines 3 (Republicans) to 2 (Democrats). Here is a link to the unmodified plan. While the transcript from the July 28 meeting is not yet available, the commissioners had voted down these same changes at their prior meeting, so the discussion here from the June 18 meeting helps flesh out the details.
The original strategic plan was missing baseline measures and goals for several measures. These modifications recorded those baseline measures (after studies had been performed) and set goals. Several concerns were raised during the June meeting, including the methodology for rating the public's satisfaction with the agency, goals set that were unreachable, and the predominance of quantitative measures to assess performance. Commissioner Ishimaru's comments put one such point well:
One of the goals, that is a carry over from past strategic plans and I assume was included in this plan as well, is resolving things within 180 days. Resolving private sector charges, resolving federal sector complaints.
If you look at the definition of what resolve means it means successful resolutions I assume, and correct if I'm wrong. It means successful resolutions. It means charges that are dismissed, closed out, it means that we finished it no matter which way. Positive, negative, plus, or minus it's done, it's off our books so we don't -- it doesn't carry over to the backlog.
But as I vividly recall from a meeting I had in one of our field offices where as I was talking to investigators one pulled me aside and he said "check out this email from our deputy who said I want 300 closures by the end business today. I don't care how I get them. I want 300 closures so I can get these cases closed and off our books." And I found that, like this investigator did, very troubling that we would have a quota to close cases because we needed them closed. And as we've talked many a time and as came up during the discussion of the Vice Chair's Systemic Task Force, when we use quantitative measures alone they can be used, the numbers can be used to drive us places where we don't want to go.
And on the final plan, according to the BNA report,
Commissioner Barker commented that in her prior public sector experience, “nobody is ever 100 percent happy with a strategic plan or the process” used to produce one. She added that her “general sense” is that Flippen and other commission staff “have spent a lot of time on this” and that Barker respected “the integrity” of those who worked on it. Although the end product might be less than perfect, Barker said, “We have the obligation to move forward to approve a strategic plan.”Ishimaru stated that the vision he draws from the modified plan is that the “EEOC is a charge-processing factory” with agency performance appraised solely by numerical measures. He noted that making numbers the sole criterion, at the possible expense of other criteria such as the breadth or impact of EEOC litigation, creates potential “disincentives” for employees to deliver high-quality work that the commission purports to value most.Griffin said she shared Ishimaru's concern about “what we're saying to our own folks” at the EEOC by submitting to the OMB a modified strategic plan that “we agree is not great.” Rather than vote on a flawed plan, Griffin stated, “Let's develop the plan we're proud of and get that [to OMB].”Flippen replied that her office has begun conversations with the commissioners and other EEOC executives about the proper level of involvement for EEOC employees and stakeholders in crafting future strategic plans. “This is a very bare-bones plan” that lacks the detail of some previous EEOC strategic plans, Flippen said, adding that some of the quality issues raised by Ishimaru, for example, “are not things we could address in a month.” She characterized the modified plan as “operations driven,” but also a document that takes into account EEOC staffing shortages in modifying some of its numerical goals.Among the changes Flippen made to the document rejected on June 18 were to reduce the target that the EEOC resolve 75 percent of private sector charges in 180 days to something closer to the current 54 percent and to schedule an agency evaluation of the results of its systemic litigation initiative for fiscal 2012, rather than fiscal 2009 as originally proposed. Flippen noted that those changes, among others, reflect the realities that the commission's charge inventory is rapidly growing while EEOC staff has shrunk by almost 25 percent over the past five years.
The Office of Management and Budget still has to approve the changes, and it is unclear whether that agency will do so.
This plan in particular and measuring effectiveness of the agency more generally are very difficult issues to grapple with. I share the wariness that quantitative analysis may create perverse incentives, but at the same time, I recognize that no one has come forward with a better way to measure. This is one of the things I continue to think about in my work on enforcing our employment discrimination laws. I don't anticipate a solution any time soon.
Labor Day and Muslim Holidays for Union Workers
Update: More right on point commentary from the Sadly, No! Blog.
HAT TIP: DANA NGUYEN
Can never be too careful not acknowledging those who help you out with posts.
In any event, here is a hum-dinger from our friends at the Unfogged Blog:
Workers at Tyson Foods' poultry processing plant in Shelbyville will no longer have a paid day off on Labor Day, but will instead take the Muslim holiday of Eid al-Fitr in the fall.
A recent press release from the Retail, Wholesale and Department Store Union (RWDSU) stated that a new contract at the Shelbyville facility "implements a new holiday to accommodate the ... Muslim workers at the plant."
The RWDSU stated that "the five-year contract creates an additional paid holiday, Iidal Fitil, a Muslim holiday that occurs toward the end of Ramadan."
Two points about this-- not novel, but I gots to vent. First, 250 of the 1200 workers at this plant are Somali muslims. That's a fifth of the workforce, and it makes sense to take some cheap and fairly easy steps to make their lives easier. Second, I'm betting that being a Somali immigrant working in a chicken factory is not the easiest road to walk. Whether you see this as a small crumb for people busting their asses every day or "modern elites' unwillingness to require newcomers to conform to our ways" is a sort of Rorschach test for assholity. ("The elites" here would I guess be the 80% of the union members who approved the contract?)
I don't know who Andy McCarthy is (except one of the conservatives at NRO), but I think the term "assholity" (not about him, but his reaction to this story) apt. And, good for Tyson.
Charnovitz on the ILO Convention on Freedom of Association and its Future in the United States
Steve Charnovitz (George Washington) has posted on SSRN his article in the American Journal of International Law: The ILO Convention on Freedom of Association and its Future in the United States.
Here is the abstract:
This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee.
The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that in 2007, the United States did move forward to support freedom of association as an international right by incorporating a commitment toward freedom of association in four free trade agreements involving Peru, Colombia, Panama, and South Korea. So far, only the Peru treaty has been approved by the U.S. Congress. As a result, U.S. conduct within the trading system is inconsistent than U.S. conduct in the labor regime. Oddly, U.S. government seems willing to make international commitments on freedom of association as part of a trade treaty, but not as part of a labor treaty. This is a counterintuitive result for those who see international organizations as being specialized and international law as being compartmentalized. The paper reflects on how this situation came about and makes suggestions for how the next Administration and the Congress might proceed to strengthen commitments to international law labor within the United States.
Two thoughts on this paper: I can almost hear my friend Dennis Nolan exclaim that the ILO and international labor law does not matter in the United States. I tend to disagree and believe there is at least an indirect process of sharing between foreign and American labor and employment law.
The second thought is that with a potential Obama administration and a sizeable majority in the Senate, ILO Convention #87 may not be on the "yet-to-be-acted-on" list much longer. Anyway, here's hoping.
Academics Are a Satisfied Bunch of People
So what's so wrong with that, asks Inside Higher Ed?
One of the concerns many academics have had in recent years is that the increased financial pressures in higher education and what critics call the “corporatization” of academe would make higher education a less desirable place to work.
But a study presented this week at the annual meeting of the American Sociological Association finds that academic scientists — in the natural and social sciences — are more satisfied than are their counterparts outside of higher education. The original hypothesis of the paper was that there might be a convergence of satisfaction levels, especially since satisfaction was defined in ways that stress traditional academic values, not more entrepreneurial ones. The scientists were asked about satisfaction with their independence and responsibility and the social contributions of their work — the sorts of factors that many fear are being lost as academic science at many universities is increasingly connected to the business world. (Although they were asked many other questions about their jobs, the satisfaction questions were defined in this way only.)
The authors — Roberta Spalter-Roth of the sociology association and Grant Blank of Applied Social Research Associates — found instead that academic scientists (except psychologists) remain more satisfied than those outside academe.
I have always said that I get the work in the greatest job in the world, but I wonder who was surveyed here? Only tenure track-types or the increasingly large contingent workforce in higher education? I would bet my bottom dollar that part-time professors and adjuncts don't have the same satisfaction levels.
August 5, 2008
Job Targeting and Antitrust Exemptions
"Job targeting" refers to the practice of a union--typically in the construction industry--using some of its dues to pay employers who use union labor to help them remain competitive with nonunion employers. Groups like the Right-to-Work Foundation and construction industry organizations have targeted such programs as violations of antitrust law. Those attempts have usually failed, as several courts have held that job targeting programs are not covered by antitrust laws. However, BNA's Daily Labor Report (subscription required) is reporting on a recent First Circuit decision reversing summary judgment for a union in a case involving a challenge to a job targeting program--American Steel Erectors v. Local 7 (you can also get the decision off the First Circuit website, but it doesn't allow direct links to opinions). According to the DLR:
Five nonunion steel erector companies in New England may proceed with their claims that a job targeting fund run by the Iron Workers and other activity in conjunction with union contractors violated federal antitrust and labor laws, the U.S. Court of Appeals for the First Circuit ruled Aug. 1. Reversing a lower court's grant of summary judgment to Iron Workers Local 7, the appeals court held that the union is not protected by the statutory labor exemption from the antitrust laws because the union's Market Recovery Program is a "combination" between labor and nonlabor groups--a multiemployer association that has a collective bargaining agreement with the union and individual union contractors.
But the appeals court remanded the case for the U.S. District Court for the District of Massachusetts to determine whether the union is protected by the nonstatutory labor exemption from the antitrust laws. The appeals court said it was remanding to resolve genuinely disputed issues of material fact as to "the extent of the collaboration between Local 7, signatory contractors, and the construction companies that hire them." The appeals court also directed the lower court on remand to consider the nature and extent of the union's allegedly coercive tactics and whether the union violated the Labor-Management Relations Act by "pressur[ing] neutral employers into agreements to refrain from using non-union contractors." However, the appeals court affirmed that the nonunion contractors' state-law claims for tortious interference with advantageous contractual and economic relations and violation of the Massachusetts Fair Business Practices Act are preempted by the National Labor Relations Act. . . .
The five nonunion steel erectors alleged that the union activity constituted an unlawful restraint on trade in violation of the Sherman Act and Section 303 of the LMRA, which prohibits unions from engaging in unfair labor practices in violation of Section 8(b)(4) of the NLRA. . . . The statutory labor exemption is based on provisions in the Sherman, Clayton, and Norris-LaGuardia Acts, Stahl said. The Supreme Court held that union activity is exempt from antitrust liability if the union is acting in its self-interest and does not combine with nonlabor groups, he explained. The Supreme Court later recognized a limited nonstatutory labor exemption shielding "some restraints on competition imposed through the bargaining process, where the alleged anticompetitive conduct is anchored in the collective-bargaining process, concerns only the parties to the collective bargaining relationship, and relates to wages, hours, and conditions of employment, or other mandatory subjects of collective bargaining," Stahl said.
Disagreeing with the district court's ruling that the union activity in this case is protected by the statutory labor exemption, Stahl said "it is a thin fiction to pretend that the [MRP] does not represent a combination between labor and non-labor groups." . . . The district court did not decide whether the nonstatutory labor exemption applied, Stahl said. He found that the "case for the applicability of the nonstatutory exemption is strongest where the alleged restraint operates primarily in the labor market and has only tangential effects on the business market."
"Other circuits have found that job targeting programs, similar in structure and implementation to the program at issue here, do fall within the bailiwick of the nonstatutory exemption," Stahl said. However, he found that the five nonunion contractors alleged that the MRP was part of a wider conspiracy involving entities that do not employ workers represented by the Iron Workers. Considering all of the allegedly illegal activity, disputed issues of material fact must be resolved before deciding whether the union is protected by the nonstatutory exemption, Stahl said. He found that those issues include the extent to which the union collaborated with signatory contractors in identifying target projects and whether fabricators and general contractors conspired with the union to shut nonunion erectors out of the market.
Although the union failed to get summary judgment, the opinion isn't necessary a loss. At its core, the opinion simply required a trial to resolve factual allegations that, if true, would make this job targeting program unique. In other words, the case isn't a direct hit a job targeting in general. And while we're on the subject, what's with all of the objections to such programs? (Other than, of course, they may actually help unions.) If, as happened in this case, a majority of union members vote to use some of their dues to help make union employers more competitive, what's the problem? There's little question that a union could negotiate a CBA for the same purpose by, for example, lowering employees' pay. So what's the difference with accomplishing the same goal through a job targeting plan?
Hat Tip: Dennis Walsh