Saturday, August 23, 2008

Does Smoking Nuke Career Advancement?

Smoking .
Liz Wolgemuth over at U.S. News's The Inside Job is conducting a running poll on whether smoking hurts a person's career.  So far, 48% of respondents say "absolutely"; another 29% say "possibly".  Only 24% say "no" or "probably not".  Evil H.R. Lady says that smoking is "a huge negative" because: 

1. The smell.  [I]t's a rare smoker that doesn't smell like smoke.
2. Multiple breaks throughout the day.
3. Higher health care costs.

Of course, here in Kentucky, smokers are a protected class.  Really.


August 23, 2008 | Permalink | Comments (0) | TrackBack (0)

The Economics of Picking Fruit

Straw Is piecework the most efficient way to motivate migrant workers to work efficiently?  No, found a group of British economists:

"Farmer Smith" (a large industrial fruit farmer) had been paying a piece rate—a rate per kilogram of fruit—but also needed to ensure that whether pickers spent the day on a bountiful field or a sparse one, their wages didn't fall below the legal hourly minimum. Farmer Smith tried to adjust the piece rate each day so that it was always adequate but never generous: The more the work force picked, the lower the piece rate. But his workers were outwitting him by keeping an eye on each other, making sure nobody picked too quickly, and thus collectively slowing down and cranking up the piece rate.

[The economists] proposed a different way of adjusting the piece rate: Managers would test-pick the field to see how difficult it was and set the rate accordingly, thus preventing the workers from engaging in a collective go-slow. (If the managers made a mistake in their estimate, and the pickers didn't earn minimum wage, Farmer Smith would make up the shortfall with an extra payment. This rarely happened.) ... The new pay scheme increased productivity (kilograms of fruit per worker per hour) by about 50 percent.

The next summer, the researchers turned their attention to incentives for low-level managers, who would also be temporary immigrant workers but who would be responsible for on-the-spot decisions such as which workers were assigned to which row. The researchers found that managers tended to do their friends favors by assigning them the easiest rows. This made life comfortable for insiders but was unproductive since the most efficient assignment for fruit picking is for the best workers to get the best rows. The researchers responded by linking managers' pay to the daily harvest. The result was that managers started favoring the best workers rather than their own friends, and productivity rose by another 20 percent.

[The economists then] proposed a "tournament" scheme in which workers were allowed to sort themselves into teams. Initially, friends tended to group themselves together, but as the economists began to publish league tables and then hand out prizes to the most productive teams, that changed. Again, workers prioritized money over social ties, abandoning groups of friends to ally themselves with the most productive co-workers who would accept them. In practice, that meant that the fastest workers clustered together, and again, productivity soared—by yet another 20 percent.

For the complete story, see Tim Harford, The Fruits of Their Labors.  Hat tip:  Dennis Nolan.


August 23, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Rats in New Zealand

Rat_2 The New Zealand Herald reports that

SkyCity workers have inflated a giant rat outside Auckland's landmark casino today to graphically illustrate management there as "dirty employers".  Unite and the Service Workers Union, which represent about 1300 workers at SkyCity, have been in dispute with management since pay talks broke down earlier this year.

Looks like the inflatable rats have spread beyond the American Northeast.

Hat tip:  Dennis Nolan.


August 23, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Friday, August 22, 2008

I Spy: FMLA Claims and Employer Surveillance

Camera The National Law Journal has a story on employers' increasing use of surveillance against employees who are out on FMLA leave.  According to the NLJ:

A growing number of employers are hiring private investigators to spy on employees suspected of taking leave dishonestly under the Family Medical Leave Act.

Management-side attorneys claim that FMLA abuses have gotten out of hand, and employers need a tool -- in this case surveillance -- to catch malingerers using FMLA improperly. And it's been pretty successful, they said, noting that private investigators in recent years have helped catch employees bowling, doing yard work or holding second jobs when they're supposed to be out on sick leave. Employee-rights attorneys, meanwhile, view surveillance as harassment, intimidation and an interference with a worker's right to take FMLA leave. It also has a chilling effect on other employees who may not take the leave for fear of being spied on.

Both sides, however, note that the courts appear to be siding with employers. Most recently, the 7th U.S. Circuit Court of Appeals upheld an employer's right to spy on a woman suspected of lying to get FMLA leave, holding that the surveillance provided the employer with an "honest suspicion" that she was using the FMLA improperly. She claimed she suffered from migraines, but was caught on camera mowing lawns as a second job, according to court documents. Vail v. Raybestos, No. 07-3621 (7th Cir.). . . .

Employers should certainly be able to raise reasonable suspicions of abuse, but there's a dangerous point  that risks crossing into retaliation or intimidation.  This tensions shows some gaps in the legal landscape.  Although the NLRA prohibits much surveillance of collective activity, employees are generally left without privacy rights.  These FMLA issues are one of many by-products of that fact.

Hat Tip:  Katie Tolliver


August 22, 2008 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Conference on International Labor Standards, Rights and Beyond at Stanford

Stanfordlaw The International Labor Standards, Rights and Beyond Conference will take place on November 14 and 15, 2008 at Stanford Law School.

From the conference webpage:

[The conference] will focus on the development of international labor standards and rights, beginning with a keynote address by Judge Rosemary Barkett of the United States Court of Appeals for the Eleventh Circuit. Following this will be various presentations on international law and the use of foreign law by national court systems. The range of topics will include ideas about transnational labor citizenship, country-specific labor programs linking trade and labor rights, and the role of the World Trade Organization and the International Labor Organization. 

Speakers include: Bill Gould (Stanford), Jennifer Gordon (Fordham), John Hall (Chapman), and Kevin Kolben (Rutgers Business).

Please visit the agenda page for more specific information on speakers and session descriptions.


August 22, 2008 in Conferences & Colloquia | Permalink | Comments (2) | TrackBack (0)

Female Bullying in the Workplace: Mean Girls Grown Up

Bullying Note the gender of the bullies to the left and then consider this recent article in the Financial Post (Canada) discussing the phenomenon of female-on-female bullying in the workplace:

For years, Lynda Cuddy worked in fear of another woman -- her manager. There was a lot of shouting that included being summoned with, "Get over here right now!" If she challenged the treatment, the manager would be livid, accusing her of insubordination. "She'd cut me off whenever I was talking. Anything I had to say had no value. The micromanagement was unbelievable; everything you do is not good enough." . . . .

While a number of women bullied by male bosses have successfully sued in recent years, woman-to-woman bullying is perceived by many as a "personality" issue.

Workplace bullying is, according to a survey conducted for The Workplace Bullying Institute (WBI) in the United States, four times more prevalent than illegal forms of harassment, with about 37% of workers saying they have been bullied. Most people associate bullying with the patriarchal male boss of the past. Research shows women bully less in the workplace than men, but unlike men, who have no significant gender bias when it comes to their targets, in more than 70% of the cases, their target is another woman.

For Ms. Cuddy, a single mom who needed her job, the fact the person bullying her was another woman made it all the worse. "You tend to expect women to have more empathy and compassion, but she didn't have it. And when she seemed to, it wasn't genuine," she says . . . .

"[Women] have this idea that there is a sort of a sisterhood and we would hope that other women in the workplace would support us, so when instead we are bullied by them, it impacts us differently than when it's coming from a male," says Cheryl Dellasega, author of Mean Girls Grown Up, a book on female relational aggression, which is that type of covert aggression favoured by female bullies, including everything from gossip and lies, to isolation, backstabbing and put-downs or betrayals.

And make no mistake that psychological bullying can be just as bad, if not worse, than the more physical bullying experienced between males.  I have written about this in the school environment, and this is just like Dellasega says, just "mean girls grown up."

Unfortunately, state workplace bullying laws have not gotten off the ground yet and treating this as a same-sex harassment case under Title VII has proven difficult.  Obstacles include showing that a reasonable person would have felt the same way about the harassment as the female employee and that the harassment was "because of" the employee's sex per the Oncale decision.

David Yamada and others have done yeoman work in this area, but more needs to be done to fill in the gaps in employment law to protect workers from having to suffer in these types of workplace environments.

Hat Tip: Dana Nguyen


August 22, 2008 in Workplace Trends | Permalink | Comments (1) | TrackBack (0)

BFOQs and the Prison Context

Prison Paul Mollica at Daily Developments in EEO Law brings word of a surprising and interesting gender discrimination case in the prison context involving a bona fide occupational qualification (bfoq).  In Henry v. Milwaukee County, No. 07-2534 (7th Cir. Aug. 20, 2008):

[T]he Seventh Circuit reverses judgment for the employer and orders entry of judgment for plaintiffs instead.

Not an everyday occurence. The case involves a shift policy that required staff members of the same sexb be available at each pod in the facility day and night.  Because of more male juveniles, female guards were deprived of opportunites for night shifts to make more money.  This lawsuit followed.

The Seventh Circuit found that although there is wide discretion under the holidng of Torres v. Wisconsin Department of Health & Social Services, 859 F.2d 1523 (7th Cir. 1988) (en banc), conferred on correctional facilities to assign same-sex guards to adult inmates, there was not sufficient evidence in this context that it was "reasonably necessary" to have this shift policy:

We must conclude that Milwaukee County's contention that sex-based assignments are reasonably necessary to achieve these goals, at least on the third shift, is not supported by the record before us. The employer, Milwaukee County, has the burden to demonstrate that it could not rearrange job responsibilities to eliminate or minimize the conflict between the inmates' privacy, security and rehabilitation interests and the employees' rights under Title VII. Although reducing the number of opposite-sex staff on the pods may help to promote security, efficient risk management and privacy, Milwaukee County has failed to establish that its policy was reasonably necessary for these goals.

What I find interesting is that arguments that have been relied on by other courts in the bfoq context were found unprevailing here.  For instance, the fact that there were no history of staff-on-inmate sexual assaults and that there remained other measures could have been taken (e.g., a better alarm system, installing additional cameras, leaving the doors open between the pods at night or increasing the frequency of supervisor patrols), have been found not enough to overcome the prison's discretion in other cases.

As always, Chief Judge Easterbrook, concurring, had an interesting response to the prison's contention that male guards were needed for mentoring of the juvenile residents: 

I call this a stereotype because it is based on folk wisdom. It could, in principle, be based on facts, such as proof that recidivism rates fall (or legitimate income after release rises) when a prison has more guards of the inmates' sex. But the County conceded that it lacked such data when it adopted this policy, and neither expert witnesses nor any published studies supplied an empirical foundation for the policy at trial. . . . [I]nstead of producing data, the defendants in this case reiterated sexual stereotypes. A court that permits a state (or for that matter a federal agency) to make decisions influenced by intuitions about what the data ultimately will show must insist that the state (or agency) find out whether those intuitions are sound or simply superstitions.

Wow.  Good for you, Judge Easterbrook.

This case in my mind represents a proper, thorough-going application of the bfoq defense, even in a difficult context like that of a juvenile prison.  It is also consistent with appropriate sexual harassment findings in the adult prison context that we discussed a couple of years ago.

I hope courts continue to follow this course and become overly susceptible in inappropriate gender assumptions in these penological contexts.


August 22, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Another Nail in the Coffin for Age Discrimination, Cash Balance Plan Conversion Suits

Cashbalanceplan It seems that the federal circuit court of appeals have coalesced around a finding that conversion from a traditional defined benefit plan to a cash balance plan is not age discriminatory.  The Ninth Circuti has the latest opinion finding such a conversion not age discriminatory (via Ross Runkel):

The 9th Circuit held that Employee Retirement Income Security Act (ERISA) pension plans utilizing a cash balance formula (cash balance plans) do not violate 1) an age discrimination provision set forth at 29 USC Section 1054(b)(1)(H) of ERISA; or 2) an "anti-backloading" provision set forth at 29 USC Section 1054(b)(1)(B) of ERISA.  The court also held that ERISA preempts an age discrimination claim under California's Fair Employment and Housing Act (FEHA), when the claim "relates to" an ERISA-covered employee benefit plan and relies upon conduct not prohibited by the Age Discrimination in Employment Act (ADEA).

The case is Hurlic v. Southern California Gas (9th Cir 08/20/2008). The Ninth now joins the 2nd, 3rd, and 7th in so finding (see here, here, and here). 

Well, Ed Z., it looks like Alvin Lurie was right after all on this.


August 22, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

From the Ironic Employment Discrimination Suit File

Age_discrim1 The Houston Chronicle reports on a suit against the AARP for age discrimination:

AARP, the national advocacy group for older Americans, is being accused of age discrimination. Bonita Brady, a 63-year-old from Michigan, says the group passed her over for a series of jobs because she was too old, despite excellent job reviews.

She joined AARP in Chicago in 1996 as a health representative. She also worked for AARP in Washington before moving to the Lansing office in 2007.

Brady says she lost her job in a reorganization and was passed over for nine vacancies. She sued last week in federal court in Michigan and is seeking more than $25,000.

A message seeking comment was left with AARP lawyer Julie Badel in Chicago.

Next week's headlines: N.O.W. accused of gender discrimination and the Anti-Defamation League gets hit with a religious discrimination suit.

Hat Tip:  Ronald Turner


August 22, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

ERISA Advisory Council Seeks Comments on Retirement Issues

Retirement The ERISA Advisory Council will meet in Washignton, D.C. on September 9th through Sept. 11th.  The meetings are open to the public and comments are accepted on the retirement issues being discussed  through September 2nd. 

From the Employe Benefit Secuirty Administration of the DOL (and published in the Federal Register):

The focus of the Working Group meeting on September 9 will be on phased retirement, including issues facing employers who wish to create phased retirement plans, as well as the issues facing employees who wish to take part in phased retirement programs, and whether there are any legal impediments that discourage American workers from continuing to work in their retirement years.

The focus of the Working Group meeting on September 10 will be on spending down retirement assets, including the issues and barriers facing plan fiduciaries, plan sponsors, and plan participants as they attempt to evaluate approaches that guarantee periodic income levels at retirement.

The focus of the Working Group meeting on September 11 will be on hard to value assets and target date funds, including potential risks and the roles of fiduciaries, trustees, investment managers, accountants/auditors and participants when employee benefit plans invest in hard to value assets, a review of regulatory policy involving assets for which there is not a generally recognized market, and challenges and risks associated with plans' use of target date funds."

There is a growing concern on how to manage retiree assets in the coming days of the consumer driven, individual account plans. If you have ideas or thoughts on any of these issues, now is not the time to be shy.  There is likely to be much legislation in the employee benefits area during the next presidential administration.


August 22, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

10th Cir.: Title VII Participation Clause Retaliation Provision Broader Than Opposition Clause

Scalesred So found the Tenth Circuit this week in Vaughn v. Epworth Villa (10th Cir 08/19/2008).

Here is Ross Runkel's description of the case from his Employment Law Memo:

Vaughn sued the employer, asserting (among other things) a Title VII retaliation claim.  The trial court granted summary judgment in favor of the employer.  The 10th Circuit affirmed.

Vaughn alleged that she was discharged in retaliation for participating in discrimination proceedings with the Equal Employment Opportunity Commission (EEOC).  The "participation clause" of Title VII's anti-retaliation provision provides that an employer may not retaliate against an employee "because [the employee] has ... participated in any manner in an investigation, proceeding, or hearing" under Title VII.  42 USC Section 2000e-3(a).  The court concluded that the scope of activity protected under the participation clause is broader than that protected under the "opposition clause" of the same anti-retaliation provision.

During the scope of the EEOC proceedings, Vaughn provided un-redacted medical records relating to one of her employer's clients.  Not surprisingly, that act violated the employer's policies and provided the proffered legitimate non-retaliatory reason for Vaughn's discharge.  The court found that Vaughn's conduct fell within the scope of the participation clause because she participated in "any manner."  Citing the plain language of the statute, the court reasoned that participation in "any manner" is not limited to "honest and loyal" conduct.  The court noted, however, that an employee's conduct may fall within the scope of the participation clause and still form the basis for an employer's legitimate, non-retaliatory reason for taking a materially adverse employment action when that conduct violates the employer's policies.  The court concluded ultimately that Vaughn's case presented one such situation, and affirmed.

This case seems to goes against the tide of broader retaliation protection for employees since Burlington Northern in 2006 and narrow the protection for employees who employers claim an adverse employment action is based on a legitimate, non-retaliatory reason.  Of course, the devil is in the details and how broadly lower courts read this to give employers latitude to take these types of actions.


August 22, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Secunda on Labor Law

SecundaCongratulations to Paul Secunda (Marquette) on the publication of the Teacher's Manual to Cox, Bok, etc. Labor Law: Cases and Materials (Foundation Press).  Here's how Paul describes the Manual:

My hope is that this new Teacher Manual ... will help both senior and new labor law professors effectively convey the exciting and stimulating state of labor relations law in the United States.  It is structured to be reader-friendly, to provide brief summaries of cases and materials, and to provide sample answers to problems for discussion.  My ambition is also to help professors challenge students to think whether, consistent with the goals of the NLRA, there may be a better labor relations system which will continue to protect the sometime conflicting interests of employers and employees, and lead to a more benevolent form of employment in our country.


August 22, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Schwinn on Displaced Workers

Schwinn Steven Schwinn (John Marshall - Chicago) has just posted on SSRN his article Displaced Workers and Their Search for Support in a Broken Bureaucracy.  Here's the abstract:

The federal Trade Adjustment Assistance (TAA) programs provide cash benefits and job retraining to workers and farmers who have been displaced by the off-shoring of U.S. jobs, falling prices resulting from increased imports, and other consequences of international trade. But workers and farmers have been seriously hampered in their attempts to gain TAA benefits by persistent and pervasive mismanagement of the TAA programs by the U.S. Department of Labor and the U.S. Department of Agriculture.

This article describes some of the problems that workers and farmers have faced in applying for and receiving TAA benefits. While legislative changes may address some of these problems, the article argues that legal counsel for workers and farmers is a necessary component of any plan to ensure that TAA benefits reach those they were designed to help.


August 22, 2008 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, August 21, 2008

New Health Care Conscience Regulation

Hhs The Washington Post is reporting on a new HHS proposed rule that could have a significant impact in health-care workforces.  According to the Post:

The Bush administration yesterday announced plans to implement a controversial regulation designed to protect doctors, nurses and other health-care workers who object to abortion from being forced to deliver services that violate their personal beliefs.

The rule empowers federal health officials to pull funding from more than 584,000 hospitals, clinics, health plans, doctors' offices and other entities if they do not accommodate employees who refuse to participate in care they find objectionable on personal, moral or religious grounds. . . .

The proposed regulation, which could go into effect after a 30-day comment period, was welcomed by conservative groups, abortion opponents and others as necessary to safeguard workers from being fired, disciplined or penalized in other ways. Women's health advocates, family planning advocates, abortion rights activists and others, however, condemned the regulation, saying it could create sweeping obstacles to a variety of health services, including abortion, family planning, end-of-life care and possibly a wide range of scientific research. . . .

The regulation drops the most controversial language in a draft version that would have explicitly defined abortion for the first time in a federal law or regulation as anything that interfered with a fertilized egg after conception. But both supporters and critics said the regulation remains broad enough to protect pharmacists, doctors, nurses and others from providing birth control pills, Plan B emergency contraception and other forms of contraception, and explicitly allows workers to withhold information about such services and refuse to refer patients elsewhere. . . .

The regulation, which would cost more than $44 million to implement, was aimed at enforcing several federal laws that have been on the books since the 1970s and were aimed primarily at protecting doctors and nurses who did not want to perform abortions in the wake of the Supreme Court's Roe v. Wade decision, [HHS Secretary Mike] Leavitt said. But critics said they remained alarmed at the scope of the regulation, which could apply to a wide range of health-care workers. For example, the regulation would cover "participating in any activity with a reasonable connection to the objectionable procedure, including referrals, training, and other arrangements for offending procedures. "For example, an operating room nurse would assist in the performance of surgical procedures; an employee whose task it is to clean the instruments used in a particular procedure would be considered to assist in the performance of the particular procedure," the regulation states.

The biggest effect for patients will take place in rural areas, where access to contraception and abortion services are already severely limited.  We'll give you updates on the proposed regulation's progress.


August 21, 2008 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Lilly Ledbetter to Speak at the DNC

NwlcVia the National Women's Law Center, Lilly Ledbetter will speak at the Democratic National Convention next Tuesday at about 9:00 p.m. Eastern, presumably in support of the Lilly Ledbetter Fair Pay Act (H.R. 2831), which was stalled in the Senate in April, or maybe the Paycheck Fairness Act (H.R. 1338), which has passed the House and was referred to the Senate Committee on Health, Education, Labor, and Pensions earlier this summer.


August 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Trial Court Upholds Religious Bias Jury Verdict But Reduces Punitives

ScalesThis one has been sitting in my to-do pile for a little while after Paul brought it to my attention earlier this month. The District Court for the Eastern District of California entered judgment for the plaintiff and issued an order modifying a jury award in Noyes v. Kelly Servs., Inc., 2:02-cv-2685, a disparate treatment case under Title VII and California's Fair Employment and Housing Act involving religious preferences. The order is not currently published, but I was able to download a copy of the order from Pacer.

After a trial (after the district court had awarded summary judgment and the Ninth Circuit reversed), the jury found that Kelly Services failed to promote Noyes to a management position because she did not belong to the Fellowship of Friends, which was the religion of a top-level manager in Noyes' office. The jury awarded $647,174 in compensatory damages and $5.9 million in punitives. Kelly Services filed a motion for judgment as a matter of law and for new trial, seeking to set aside the jury verdict, and the court partially denied and partially granted the motion.

The court found sufficient evidence to support the jury's finding that the manager used religion in making the promotion decision. The person who received the promotion was a member of the Fellowship, there was evidence that Heinz had treated Fellowship members more favorably than non-members in prior situations, there was evidence that Noyes was qualified for the position, and there was evidence that Heinz misrepresented to other managers that Noyes didn't want the position when those managers indicated that she would be a good candidate.

The court reduced the jury's punitive damages award, however. The court applied the "three guideposts" from the Supreme Court's decision in BMW v. Gore: 1. the degree of reprehensibility of the defendant's counduct; 2. the disparity between the harm or potential harm to the plaintiff and the punitive damages award; and 3. the difference between this remedy and the penalties in comparable cases. The degree of reprehensibility, as set out in State Farm v. Campbell, includes several factors: a. physical as opposed to economic harm; b. conduct evincing indifference or reckless disregard of health or safety of others; c. financial vulnerability of the target of the conduct; d. repeated actions as opposed to an isolated incident; or e. conduct taken with intentional malice, trickery, or deciet rather than by mere accident.

The court found that intentional discrimination was "'more reprehensible than would appear in a case involving economic harms only,'" that Noyes was financially vulnerable to Kelly Services, that the conduct was repeated and not an isolated incident, and that the manager acted with oppression or malice by intentionally discriminating and that a managing agent of Kelly Services knew of and ratified that conduct, but that the conduct didn't recklessly disregard the health or  safety of others. Taken all together, the court found that the conduct "displayed a modest degree of reprehensibility." This finding supported awarding punitive damages, but did not support the 9.1 to 1 ratio of punitives to compensatory damages. Because of the modest degree of reprehensibility and the fact that the vast majority of the award ($500,000) was for emotional distress damages, which already penalize defendants for outrage and humiliation, and that title VII puts a cap on punitives at a much lower level, the court found that a 1 to 1 ratio was constitutionally required. (Note that Title VII's cap here does not limit her award because California state law doesn't impose a cap). Thus, the court cut the punitive damages award to $647,174.

According to the court's docket, the parties have filed cross-appeals. Noyes appealed the reduction in punitives while Kelly Services appealed the entire judgment. The Ninth Circuit will next have to weigh in on the appropriate ratio.


August 21, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

NLRB Contract Bar Case

Nlrb BNA's Daily Labor Report (subscription required) is reporting on an interesting new case examining what type of agreement triggers the contract bar.  Coca-Cola Enterprises involves a memorandum of understanding between the employer and the Teamsters that covered new distribution rules (including pay) for part of the bargaining unit.  The union argued that the MOA served as a contract bar to a subsequent decert petition; the Regional Director agreed with the union, but the two-member NLRB did not: 

The board found that the MOU was not a new bargaining contract, did not incorporate the terms of the five-year agreement, and did not reaffirm the original agreement and indicate an intent to be bound for a specified term. . . .

 "To serve as a bar to a petition, a contract must contain substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship, and must be signed by the parties," the board said. It explained that under General Cable Corp., 139 N.L.R.B. 1123, 51 LRRM 1444 (1962), "an agreement of more than 3 years duration is treated for contract bar purposes as expiring on its third anniversary date." 

In a case addressing extensions of long-term contracts, the board held in Southwestern Portland Cement Co., 126 N.L.R.B. 931, 45 LRRM 1412 (1960), that two kinds of extensions can serve as a contract bar:

            "(1) a new agreement which embodies new terms and conditions, or incorporates by
            reference the terms and conditions of the long-term contract, or (2) a written   
            amendment which expressly reaffirms the long-term agreement and indicates a clear
            intent on the part of the contracting parties to be bound for a specific period."

The board disagreed with the regional director's findings that the MOU satisfied both alternatives of the test. 

Noting that the union referred to the MOU as an "addendum," the board found it is "clear that the parties did not intend for the MOU to be a new agreement embodying new terms and conditions." The MOU also "does not have a readily discernible effective date or expiration date," the board said. It found that without such dates, "third-parties would be unable to determine the appropriate time for filing a petition." 

Rather than constituting a complete agreement covering the bargaining unit, the MOU's terms "are limited to certain supplemental payments for drivers, training for drivers and warehousemen, and the reclassification of drivers, and affect only a minority (30%) of unit employees," the board said. It also found that the MOU merely refers to the five-year contract and "does not incorporate the terms and conditions of employment of that contract." 

The MOU also does not satisfy the second alternative under Southwestern Portland Cement, the board said. It found that the MOU is missing substantial terms and conditions of employment, the content "indicates that it was written for the narrow purpose of addressing the Employer's proposed implementation of the [new distribution method], which primarily affects drivers only," and the MOU lacks effective and expiration dates.

That decision seems reasonable to me, as the significance of the contract bar warrants an agreement that is either explicitly a contract or substantial enough for people to consider it as such.  Incidentally, one of the employer's attorneys was former NLRB member, Robert Brame.


August 21, 2008 in Labor Law | Permalink | Comments (2) | TrackBack (0)

Gene Upshaw Has Died

Upshaw Gene Upshaw, the long-time and at times controversial head of the NFL Players Association has died of pancreatic cancer.  According to the Washington Post:

Upshaw had served as executive director of the players' union since 1983. He led players through a strike in 1987 before presiding over a lengthy labor peace that helped cement the NFL as the most popular and prosperous professional sports league in the country. . . .

Upshaw was an outspoken leader who was criticized by some for his close relationship with former NFL commissioner Paul Tagliabue and his treatment of retired players. But he was a successful negotiator who secured a lucrative deal for the players in their most recent set of labor negotiations with the league's franchise owners. The deal, completed in 2006, guaranteed the players about 60 percent of total league revenues under the salary cap system. Some owners criticized the deal as overly favorable to the players, and the owners as a group voted this year to end the agreement early and reopen labor talks with the union. . . .
Upshaw had considered retiring, as Tagliabue did, after the 2006 labor deal was completed. But he stayed on, and more recently vowed to remain in charge of the union through these labor negotiations despite a movement by a group of players to unseat him as soon as next spring. . . .

It will be interesting to see what effect Upshaw's loss has on the potential labor trouble brewing again with the NFL.


August 21, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Dannin on the Right to Organize

Dannin Ellen Dannin (Penn State) has just posted on SSRN her essay Understanding How Employees' Rights to Organize Under the NLRA Have Been Limited: The Case of Brown University.  Here's the abstract:

The National Labor Relations Board's (NLRB's) 2004 Brown University decision held that graduate student teaching and research assistants were not employees, and therefore, were not protected by the National Labor Relations Act (NLRA). Deciding whether individuals are employees as defined by the NLRA is critical to labor law, as it determines whether individuals have a protected right to engage in freedom of association, self-organization, collective bargaining, and acts of mutual aid or protection. This article explains and critiques the Brown decision as a departure both from precedent as well as from the central purposes of the NLRA. It also examines how Brown University "foreshadowed other cases in which the Board would ignore precedent and the policies underlying the NLRA." The piece advises readers about the importance of precision in criticizing such decisions, because "if that criticism is not targeted to the specific wrong, it can do damage." It further cautions that, while criticizing specific failures to enforce NLRA rights is essential, it is important to not wholly abandon the NLRA as a vehicle for protecting such rights, stating "We must insist that the promise of the NLRA to actively promote freedom of association in order to create equality of bargaining power between employers and employees . . . is kept."


August 21, 2008 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2008

Library of Congress Sued for Discrimination

Library_of_congress The Washington Post has an update on a case that we posted on previously, Schroer v. Billington, which involved a suit against the Library of Congress, arguing that it rescinded a job after after discovering that the applicant was planning to medically transition from a man to a woman.  The case has now gone to trial, which the Post summarizes:

Diane Schroer, a 52-year-old former Army Special Forces commander, testified yesterday in federal court that she was "disappointed and dismayed" when an official at the Library of Congress rescinded a job offer even though she was the star candidate. The offer, for a job as a terrorism research analyst, was pulled the day after Schroer told her future boss that she was making the medical transition from being a man, David, to being a woman, Diane. . . .

Schroer, who has completed the medical process of becoming a woman, is pursuing a sex discrimination case against the Library of Congress under the Civil Rights Act. The bench trial before U.S. District Judge James Robertson is expected to last about a week, and a ruling might not come until well after that, while the judge considers the facts of the case, as well as arguments over the reach of the law.

Schroer, of Alexandria, had a prestigious military career that ended in retirement in 2004 after seven years in the Army's Special Forces command. After the Sept. 11, 2001, terrorist attacks, Schroer became director of a 120-member classified organization that tracked and targeted international terrorists. She routinely briefed the country's top officials, including Vice President Cheney. . . .

Schroer is represented by the American Civil Liberties Union and filed suit in 2005. Schroer is seeking the job offer that was rescinded and damages, which are legally capped at $300,000, said one of her attorneys, Arthur B. Spitzer, legal director of the ACLU of the National Capital Area.

The Library of Congress, represented by Justice Department attorneys, has argued that Schroer cannot sue because the Civil Rights Act does not protect transsexuals or prohibit discrimination on the basis of gender identity. In court papers, Justice attorneys wrote that Preece rescinded the offer because she needed to fill the position quickly and was worried that Schroer's transgender status would require a long background check to obtain a required security clearance. Preece also was concerned that Schroer "might be unable to maintain high-level contacts in the military intelligence community" and "might not be viewed as credible" by members of Congress, the lawyers wrote.

Obviously, given the current law, this is going to be a tough case to win.  It also puts a face to the issue of whether to include transsexual status under Title VII.


August 20, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)