Saturday, August 16, 2008
The Labor Law Group's new website is up. It's being hosted by Tulane. I believe Joel Friedman is responsible for having put the website together.
For those unfamiliar with LLG, here's a brief description:
The Labor Law Group had its origins in a compelling call for the development of better books and materials for the instruction of law students on labor law by Professor Willard Wirtz at the 1946 meeting of the Association of American Law Schools. In response to Wirtz’s address, approximately forty labor law professors and practitioners met in Ann Arbor in 1947 to discuss the problem and begin work on a book. With the publication of their first book in 1953 these same academics and practitioners formed the Labor Law Group as a non-profit trust dedicated to the development of materials for the preparation of law students for the practice of labor and employment law. The “Group process” for developing books consists of: Group meetings among members and practitioners to plan and assign projects, the writing and editing of the project by the assigned members, editing of the project by the Group’s Executive Committee, and publication of the project with all royalties returned to the Group to fund future meetings and projects. The Group currently has two major projects in production and six books published with Thomson/West and Foundation Press.
Friday, August 15, 2008
BNA's Daily Labor Report (subscription required) is reporting that ICE agents arrested 42 undocumented workers at Dulles airport. According to the DLR:
ICE agents, with the support of airport security agencies, arrested the workers inside airport grounds at a checkpoint established to verify the immigration status of workers entering a service gate, the agency said. During the Dulles operation, ICE said agents interviewed more than 200 individuals to verify their identities and eligibility for lawful employment. Most of the individuals encountered at the checkpoint worked on construction projects at the airport, ICE said. . . .
ICE prioritizes enforcement efforts by focusing on the sites related to critical infrastructure and national security, the agency said. Critical infrastructure protection operations like the one carried out at Dulles reduce vulnerabilities at critical facilities to prevent potential attacks, ICE said. Unauthorized workers employed at sensitive facilities such as airports may compromise the integrity of these key assets, ICE said.
So far in fiscal year 2008, ICE agents have made more than 700 administrative arrests and 100 criminal arrests at critical infrastructure facilities, ICE said.
This brings to mind two questions: First, if undocumented workers are assumed to be a security risk, is ICE really prepared to do what it needs to to eliminate such workers from all "critical infrastructures?" Because I'm pretty sure that there are a lot more than 800 undocumented workers at such sites. Second, if this was really a serious security issue, how the heck did the Department of Homeland Security allow it to happen in the first place? Seems much more like a token show than any enforcement measure of substance.
Hat Tip: Dennis Walsh
In a story that reminds why I love labor law, Cinderella, Snow White, Tinkerbell, and other Disney characters where arrested today at Disneyland. According to the AP:
The arrest of the 32 protesters, many of whom wore costumes representing famous Disney characters, came at the end of an hour-long march to Disneyland's gates from one of three Disney-owned hotels at the center of a labor dispute. . . .
The protesters were arrested on a misdemeanor count of failure to obey a police officer and two traffic infractions, said Sgt. Rick Martinez of the Anaheim police. . . . Bewildered tourists in Disney T-shirts and caps, some pushing strollers, filed past the commotion and gawked at the costumed picketers getting hauled away. The protest shut down a major thoroughfare outside Disneyland and California Adventure for nearly an hour. . . .
The dispute involves about 2,300 maids, bell hops, cooks and dishwashers at three Disney-owned hotels: the Paradise Pier, the Grand Californian and the Disneyland Hotel. The workers' contract expired in February and their union says Disney's latest proposal makes health care unaffordable for hundreds of employees and creates an unfair two-tier wage system. The union also says Disney wants to create a new category of part-time employees who would receive greatly reduced benefits. . . .
Disney spokeswoman Lisa Haines said Disney and the union are in negotiations and nothing has been finalized. She said workers have protested 14 times but sat down to negotiate only 11 times in the past six months. . . .
At the heart of the issue is a free health care plan that has been provided to Disney hotel workers through a trust fund that Disney and other unionized hotels in the area pay into. Briceno said that in exchange for the free medical plan, union members agreed in previous contracts to a lower wage for hotel workers in the first three years of their employment. But Disney now wants to eliminate the free health plan for new hires and wants to create a new class of workers who put in less than 30 hours a week, said Briceno. Those part-time workers would receive no sick or vacation pay and not be given holidays, she said. The company also wants to increase the number of hours full-time employees must work before qualifying for the health plan, she said.
Although the protesters are a tad unique, the labor dispute isn't. Just goes to show that rising health care costs can make the happiest place on earth not-so-happy.
Hat Tip: Dennis Walsh
According to Trading Markets.com, an applicant to work at Madison Square Garden has filed a charge with the EEOC, arguing that MSG's use of criminal histories in making employment decisions has a disparate impact on African Americans. The applicant, Carlene Clark, was offered a job, which was rescinded after a background check revealed a conviction for misdemeanor assault five years earlier, according to the charge.
According to the Ms. Clark's attorneys,
The charge is "intended to place MSG on notice of class-wide allegations of race discrimination."
Adam T. Klein and Justin M. Swartz, of Outten & Golden LLP, in New York, and Julia Price Rosner, of Manhattan Legal Services, in New York, represent Ms. Clarke.
Attorney Justin M. Swartz, of Outten & Golden LLP, said, "The fact is, about one in five U.S. adults has a criminal record, and a disproportionate number of them are African-Americans and Hispanics. Millions of people like Ms. Clarke are motivated to return to the workforce after they pay their debt to society only to be turned away by employers with unfair hiring policies."
Attorney Roberta L. Steele, of Goldstein, Demchak, Baller, Borgen & Dardarian, P.C., a California firm representing workers in similar cases, said, "This type of discrimination is a worsening problem for workers who have had a brush with the law and has a devastating effect on low-income communities nationwide, and particularly on minority communities."
Some states, New York included, prohibit employers from discriminating on the basis of arrest records or criminal convictions, and so this may be a real problem for MSG. But the disparate impact claim under Title VII raises a really interesting question of broader systemic discrimination, as most disparate impact claims do, which would have national effects.
People who study issues of diversity, racial segregation, and substantive equality have for a long time mostly agreed that discrimination and segregation in employment, housing, and education are all intertwined and that one cannot be addressed without the other. It's only been relatively recently that discrimination in the administration of justice has been brought into the mix as all part of the same big mess.
Making a disparate impact claim does not require explicitly attacking the validity of the administration of criminal justice. For example, the plaintiff can agree that convictions are a "neutral" factor that simply happens to impact African Americans more negatively. Then MSG will have to demonstrate that the no convictions rule is a business necessity for this particular job (for example, it might be liable if a person with an extensive record of assault were hired for security, and then assaulted a patron). But even if it can, the plaintiff may also show that there is a less-sweeping way that MSG can reach the same result.
But the underlying theory of recognizing disparate impact really says something more radical. It recognizes that these neutral qualifications (or disqualifications) may themselves be the result of a process tainted by discrimination. For example, in the Griggs case, where the Supreme Court first recognized disparate impact, the qualification was a high school diploma. At the time and in the location that case took place, few African Americans had high school diplomas, in large part because of discrimination in education. Even when the neutral qualifications themselves are not tainted by discrimination--for example when the qualification at issue is not extrinsic but is instead intrinsic to a person, like height or weight, or even performance based--disparate impact theory recognizes that sometimes race-linked or sex-linked characteristics are viewed as necessary for a job only because of discriminatory stereotypes about the job, race, and sex.
And this is probably what makes disparate impact so much more controversial than disparate treatment. Here, the charging party will probably have to address the legitimacy of considering convictions in weakening MSG's claim that it is a business necessity to have a clean record, and may have to argue that discrimination in the administration of justice casts grave doubt on the legitimacy of considering convictions in all but rare circumstances.
According to BNA Fair Employment Practices News and Analysis, 184 LRR 369 (subscription required), the Office of Federal Contract Compliance has issued new guidance on the use of race and ethnic categories in affirmative action programs. The EEOC's EEO-1 form was changed in 2005 to refine some of the categories by splitting them up or renaming them and by adding the option of "two or more races."
According the the BNA article,
According to DOL spokesman Loren Smith, the OFCCP's Aug. 1 updated interim guidance is unchanged from last year's guidance except for the inclusion of three new paragraphs.One such addition explains that, until further rules and guidance are provided by the agency, the OFCCP will not cite contractors for noncompliance should they use the revised EEO-1 categories in developing an organizational profile. An organizational profile is a depiction of the staffing patterns within the company. Contractors also may continue using the old EEO-1 categories when conducting the analyses to form their profiles, according to the guidance.Further, the revised guidance said that when contractors compare the percentage of women and minorities in each of their job groups to the available workforce or examine whether their employment practices result in hiring or advancement disparities for minorities, the contractors should “consider all individuals identified as belonging to two or more races as minorities.”Contractors should continue to “establish a single goal for all minorities” when creating placement goals, according to the guidance.
Wayne State has announced that Margaret Leibowitz and William Mateikis will be visiting this year to teach labor and employment law courses.
Leibowitz, who will be teaching courses in labor law during the Fall 2008 semester, has visited at Wayne State since fall of last year. Before that, she spent 18 years teaching at Cornell University’s School of Industrial and Labor Relations (ILR). She is also an arbitrator and mediator of labor-management disputes in the private and public sectors. Her undergraduate degree is from ILR at Cornell and her J.D. is from New York University School of Law.
Mateikis will teach civil procedure and courses in labor and employment law as a visiting professor during the 2008-2009 and 2009-2010 academic years. His recent professional experience includes stints with Honeywell International Inc. as director of Global Trade Compliance and director of Human Resources, as well as director of Employee Relations with Gateway Companies Inc. He has also practiced privately, worked as a labor and employment attorney/director of Human Resources at General Mills, Inc., and served as an associate attorney with Pepper, Hamilton & Scheetz LLP.
Dwight Steward (damages expert and Director, EmployStats) and Stephanie Botello have just posted on SSRN their paper Back Pay and Front Pay Calculations in Employment Termination Cases: Accounting for Re-Employment and Mitigation Efforts. This paper, apparently created for a CLE presentation, provides an excellent overview of damages in employment cases. I will use it in both my Employment Law and Employment Discrimination courses, and will give copies of the article to the damages experts in my Civil Procedure course (my CP students will spend the next year mediating, arbitrating, and litigating a sexual harassment case).
Here's the abstract of the paper:
Most plaintiffs in employment termination cases will ultimately become re-employed. However, for some plaintiffs the termination of their employment produces significant economic damage to their earnings, retirement pension, and fringe benefits. For other plaintiffs, an employment termination causes little to no measurable economic harm. The individual plaintiff's efforts and ability to regain comparable replacement employment is often the key difference between the two types of plaintiffs.
The goal of this article is to provide a conceptual and practical discussion of the factors that comprise a standard economic damage model in an employment termination case. In this paper, we discuss the economic factors and assumptions that comprise an economic damages model in an employment termination case. We also provide a discussion of the valuation of employee fringe benefits and employee stock option valuations. Background on the concept of discounting and check lists that can be used to gather information in an employment cases are also provided in this paper.
Thursday, August 14, 2008
BNA's Daily Labor Report (subscription required) has noted that Midwest General and the IBEW has reached a $15.5 million settlement to resolve a dispute centered on the employer's unlawful lockout. According to the DLR:
[T]he settlement provides approximately $10 million in back pay to 1,015 Midwest Generation employees affected by the seven-week lockout. The remainder of the settlement is designed to compensate the workers for giving up their rights with respect to an unresolved legal question: whether Midwest Generation used the lockout to coerce employees into ratifying management's contract proposal. . . .
The issues go back to June 28, 2001, when members of Local 15 struck Midwest Generation, hoping to pressure the company to reach agreement on a new collective bargaining agreement. . . . Midwest did not respond until Sept. 6. After reinstating the last six crossovers, the company instituted a lockout of all workers who did not seek to return to work before the vote to end the strike. The company said the lockout would continue until the union members ratified the company's contract offer. . . .
The union filed an unfair labor practice charge and the NLRB general counsel issued a complaint alleging that the power company violated the National Labor Relations Act by locking out the workers who were on strike at the time the union made an unconditional offer on their behalf to return to work and not locking out the former strikers who returned to work. The issue proceeded directly to the board, which held 2-1 on Sept. 30, 2004, that the company did not commit an unfair labor practice.
But on Oct. 31, 2005 the U.S. Court of Appeals for the Seventh Circuit reversed the board's decision, finding that Midwest Generation had failed to carry its burden of showing that it had a legitimate and substantial business justification for the partial lockout. Writing for the court, Judge Joel M. Flaum found that Midwest "offered no proof that its operational needs justified the partial lockout" and that such a lockout was not a lawful means of applying economic pressure on holdout workers. . . . [On remand,] the board ordered Midwest Generation to pay lost wages and benefits to the locked-out workers and post a notice describing employees' rights, the illegal activity and the remedy. In addition, the board remanded to the NLRB Division of Judges the question of whether the illegal partial lockout coerced union members into ratifying the contract.
Good to see the employees finally getting some money back. However, the settlement means that we won't get an answer on the illegal lockout coerced the CBA ratification and, if so, whether the CBA should be voided.
Hat Tip: Dennis Walsh (who dissented in the initial Board decision).
The San Francisco chronicle reports that the District Court for the Northern District of California approved a settlement agreement today between Smith Barney, and a class of more than 2400 current and former female brokers. The brokers had alleged that the firm favored men in pay, promotions and client assignments. The client assignments resulted in hundreds of thousands of dollars in commissions for the men assigned to those clients. It sounds (based on my rough math $33 million divided by 2400 is something less than $14000) like Smith Barney got a good deal in the settlement (assuming the named plaintiffs had enough evidence to prevail).
"How can you sit at your table and eat a product packaged by a pregnant woman has been standing on her feet all day?" asked Rabbi Morris Allen of Minnesota. He is developing a certification program that aims to protect workers and the environment in the kosher industry. Interest in Allen's "hekhsher tzedek," or "certificate of righteousness," has ballooned since a May 12 immigration raid at Agriprocessors in Postville, Iowa. . . .
The "hekhsher tzedek" would be awarded to companies that pay fair wages, ensure workplace safety, follow government environmental rules and treat animals humanely, among other criteria. The program, which could begin as soon as next year, would be separate from the traditional certification process that measures compliance with Jewish dietary law. A company that fails to obtain a "hekhsher tzedek" could still get its food certified as kosher.
As the story notes, the certificate is not universally supported by Jewish groups. However, this is a great example of variety of ways in which an employer can be pressured to provide better working conditions for its workers.
Hat Tip: Dennis Walsh
According to a DOJ press release, the DOJ and EEOC have brought a complaint in the United States District Court for the Eastern District of Texas against the City of El Paso Housing Authority to enforce an agreement reached in EEOC mediation proceedings.
According to the press release,
The charging party claimed that she had been discriminated against on the basis of her national origin and her age when she was not selected for a promotion. In exchange for the dismissal of the charge, the Housing Authority agreed to pay the charging party $2,000, make certain changes to its promotional interview panels, and allow an outside human resources consultant to monitor the panels. However, subsequent to the signing of the settlement agreement, the Housing Authority informed the EEOC that it would not honor the agreement’s terms.
I find this report interesting for a couple of reasons. I was initially surprised that a complaint filed to enforce a mediation agreement would be the subject of a press release, but the Civil Rights Division issues lots of press releases, and so this may just be part of its normal routine. And I can see why it might be important to publicize this particular complaint. Because the non-complying party is a body of government, the public may have a greater need to know what that body is doing to better hold it accountable. Additionally, the government body doesn't have the same economic incentives to comply simply because the suit has been filed. That action by itself won't incur damages for this body, although it may create pressure from the City or whoever does defend. Finally, by filing the complaint, the substance of the agreement is made public, and more information for employees and employers both is a good thing.
Another interesting thing was the small amount of the monetary settlement, I assume in return for the institutional changes that were agreed to, along with the fact that it does not appear that the institutional measures were particularly costly. I'm curious why the Housing Authority changed its mind.
Back in June, Paul reported that the California House had passed a paid sick leave bill. According to the L.A. Times, that bill died in the legislature a week ago. The article credits the state Chamber of Commerce for its defeat, saying that the bill was "high on the influential business lobby's annual list of 'job killer' bills."
Also from the article,
The bill would have granted employees of small companies in California up to five days of paid sick leave each year. Workers at larger firms could take up to nine days a year.
An estimated 6 million California workers -- about 40% of the state's workforce -- do not have the right to take a day of paid sick leave to recuperate from an illness or injury, see a doctor or care for a family member.
Small businesses and their lobbyists who fought the sick-leave measure said they were relieved that it failed. They estimated that the bill would cost 370,000 jobs in California and would burden employers with $4.6 billion in new costs over a five-year period.
The bill "unfairly presumed that small-business owners are able to provide paid sick leave and don't want to," said John Kabeteck, executive director of the National Federation of Independent Businesses. "That couldn't be further from the truth. The fact is that many want to but simply can't afford it."
Perhaps if the cost of sick leave were funded like disability insurance or workers comp., as a proposal in New Jersey for family leave would provide, it would have had more traction.
[p]rominent labor groups are seeking an investigation into whether Wal-Mart Stores Inc. violated federal election laws by telling employees that electing Democrats would lead to passage of legislation making it easier to unionize companies.
In a letter to be delivered as early as Thursday, the labor groups are asking the Federal Election Commission to determine whether the company "made prohibited corporate expenditures" by organizing meetings across the country to warn employees that a Democratic president would back legislation known as the Employee Free Choice Act, which the company opposes. The groups say such statements amount to advocating the defeat of Sen. Barack Obama, the presumptive Democratic nominee, in the November election.
For the complete story, see Unions Seek Probe of Wal-Mart Over Election Law (subscription required).
Wednesday, August 13, 2008
The organizers of the Colloquium (Orly Lobel, Ruben Garcia, and Susan Bisom-Rapp) have asked me to republish the pertinent info for this year's annual colloquium on current scholarship in labor and employment law. This is finally the bump you need to get that pending law review piece off your desk!
Here's the site for the Third Annual Colloquium on Current Scholarship in Labor & Employment Law. The Colloquium will be held October 23-25 in San Diego.
Harry Arthurs, the renowned Canadian labor and employment scholar, will be the keynote speaker. Simply put, this conference will be as much fun as our last two Colloquium adventures in Colorado and Milwaukee.
All the bloggers here look forward to seeing all of you in cyberspace out there, there (in San Diego). You will finally be able to answer questions like: is Jeff Hirsch as charming in person as he is on-line?; does Rick Bales arbitrate in his dreams?; and is Marcia McCormick flat out crazy for becoming a Workplace Prof permablogger?
You might remember that the House passed the Paycheck Fairness Act a couple of weeks ago. Meanwhile, at the end of June (although it slipped under my radar), Senator Kay Bailey Hutchison (R-Texas) introduced into the Senate a rival bill, entitled the "Title VII Fairness Act." That legislation would amend Title VII to include language about the importance of short and definite limitations periods in the employment context and would make clear that a cause of action under Title VII would accrue when a person first had a reasonable suspicion that he or she was the subject of unlawful discrimination, and that the limitations period should be strictly construed. The bill also would create a discovery rule. The person must file a charge with the EEOC within the applicable 180 or 300 day window, depending on jurisdiction, unless "the person aggrieved demonstrates that the person did not have, and should not have been expected to have, enough information to support a reasonable suspicion of such discrimination, on the date on which the alleged unlawful employment practice occurred." A notable thing about this bill is that it is not limited to pay claims, but would apply to any Title VII claim.
The discovery rule is an appropriate addition for enforcing Title VII. Certainly, it seems unjust that a person's right to relief should be foreclosed before she has any idea that she might have a right to relief. And although the objective component might be difficult to gauge, it, too seems reasonable in that it avoids rewarding people who really sleep on their rights.
At the same time, though, this would confuse rather than clarify the continuing violation doctrine, I think. It talks about a date on which "the" unlawful employment practice occurred. That date is relatively clear, although not always, when we're talking about a firing, hiring, or promotion. But it is a lot less clear when we're talking about terms and conditions discrimination, like continuing to pay someone less because of sex. And particularly in a situation like hostile environment harassment, which doesn't necessarily have a single date at which the harassment becomes severe enough, this rule could complicate the accrual question even more than it already is complicated. And that's plenty.
The Attorney General of the United States admitted at the ABA conference that impermissible political considerations were utilized in hiring career attorneys for the Department of Justice (via the BLT blog):
In a speech before the American Bar Association's House of Delegates this morning in New York, Attorney General Michael Mukasey acknowledged that "the systen failed" when political considerations played a role in the hiring of career employees, immigration judges and others at his department in recent years. Mukasey, who became attorney general last November, was commenting on the recently-released inspector general reports on hiring practices at the department. "The conduct described in those reports is disturbing," said Mukasey. Some at the Department of Justice, he said, failed to adhere to the principle of evenhandedness, "and the institution failed to stop them."
But Mukasey said he does not expect criminal prosecutions to result. "Not every wrong, or even every violation of the law, is a crime," Mukasey said, adding that the inspector general found "only violations of the civil service laws." Mukasey also said those responsible for the misconduct have suffered "significant adverse publicity" and possible disciplinary referrals.
Why does the name of Scooter Libby come to my mind? Can any one take this Administration, or the DOJ for that matter, serious anymore.
Here's my fondest wish: a group of DOJ honor candidates who were deemed not Republican, religious, or who knows what enough, will file a class action against the DOJ for violation of the their First Amendment rights to political association and expression under Section 1983. I believe such an action would have legs under cases like Rutan, Branti, and even Connick/Pickering (which applies to failure to hire cases) It would be also great to see those responsible suffer some real monetary consequences (I can't see qualified immunity here), since criminal charges are not forthcoming (suprise, suprise!).
Tuesday, August 12, 2008
Working Mother magazine has released its list of the top 50 best law firms for women. The evaluation criteria include not just raw numbers and worklife flexibilty for lawyers of both sexes but also mentoring, networking, and management training for women lawyers.
Get it while it's hot!
From the bargaining front lines (via the Daily Labor Report):
Negotiators for the Communications Workers of America and the International Brotherhood of Electrical Workers Aug. 10 reached tentative agreement with Verizon Communications Inc. on a three-year contract to cover 65,000 employees in Northeast and Mid-Atlantic states, the unions and company announced.
In what the unions said is a "breakthrough agreement," the tentative Verizon East contract would increase wages 10.5 percent over the term, continue employer-paid health benefits, boost pensions, and create additional union-represented jobs, while it would shift retiree health care for new hires to a defined contribution formula, the parties said Aug. 10 in separate statements.
All I can say is that some management and union associates are sleeping more soundly tonight. It was only eight years ago that I took part in the massive CWA-Verizon strike that lasted numerous weeks and led to many all-nighters for yours truly running back and forth to court.
Anyone care to guess what side of the strike I was on?
We previously wrote how a Tyson's Food Plant in Shelbyville, Tenn. had substituted a labor day holiday with a Muslim holiday. Now comes word from the Daily Labor Report that the paid Labor Day holiday is back:
Members of the Retail, Wholesale, and Department Store Union (RWDSU) who work at the Tyson Foods plant in Shelbyville, Tenn., have overwhelmingly approved changes to provisions addressing paid holidays under the existing labor agreement, a union representative told BNA Aug. 11.
According to John Whitaker, a spokesman for RWDSU, the change reinstates Labor Day as a paid holiday.
In November 2007, union members ratified a five-year contract that, among other things, replaced Labor Day with the Muslim holiday of Eid al-Fitr as one of the eight paid holidays workers at the Shelbyville plant were given, Whitaker told BNA. That change was made because a majority of the 1,000 union-represented poultry processing workers at the facility were Muslims from Somalia, he said . . . .
During 2008, workers covered by the labor contract will receive nine paid holidays, including both Labor Day and Eid al-Fitr, according to Whitaker. For the remainder of the contract period, workers will have the option of either taking Eid al-Fitr or a personal day of their choice, he said.
Although I supported the ability, though union negotiations, for the Somali employees to celebrate the Muslim holiday, I equally support the new turn of events because it happened as a result of the collecitve bargaining process. Industrial democracy has indeed prevailed.
Hat Tip: Dennis Walsh