Saturday, August 30, 2008

Workplace Fairness' Take Back Labor Day Blog Project

Penguin_type_laptop_md_whtWorkplace Fairness is setting out to take back Labor Day for Labor.

On Labor Day, September 1, Workplace Fairness will launch the Take Back Labor Day blog project on the new and improved Today's Workplace blog.

. . . [S]upport Take Back Labor Day by visiting the blog and sharing your opinions and insights with our bloggers and our readers through the comment function. Please help us start a real conversation about workplace fairness in this country.

. . .

Take Back Labor Day is part of a larger effort, where upwards of 40 blogs have agreed to blog about Labor Day and labor issues on Labor Day 2008, to rally American workers and remind the American public about what Labor Day is really about - that's it's much much more than just a three-day weekend!

 Many influential bloggers, academics, and important thinkers will be participating, and I have to say welcome in particular to one of my good friends from law school, Elizabeth Glidden, a Minneapolis City Council member and employment lawyer. A great project, and we look forward to lots of thoughtful posts.

MM

August 30, 2008 in Commentary | Permalink | Comments (0) | TrackBack (0)

Harthill Promoted to Associate Professor

Harthill_2 Congratulations to Susan Harthill (Florida Coastal), who has just received final word that she has been promoted to Associate Professor.

Prior to joining FCSL, Susan was Special Counsel with the law firm of Steptoe & Johnson LLP in Washington D.C., practicing in the area of ERISA and employment law litigation. She has also served as an attorney with the Legal Aid Society of the District of Columbia as a loaned attorney from Steptoe & Johnson, representing low-income clients in the areas of family law, welfare and public benefits, and landlord-tenant disputes.

Susan has just posted on SSRN her article (forthcoming ___ Minn. J. Int'l L.) Bullying in the Workplace: Lessons from the United Kingdom.  Here's 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.

Susan also has posted an abstract of her work-in-progress: A Square Peg in a Round Hole? Whether Make Whole Relief Is Available Under ERISA Section 502(A)(3).

rb

August 30, 2008 in Faculty News, Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, August 29, 2008

11th Cir. Appears to Mix Up Its Standards of Review in Title VII Case

Scalesred Thanks to Miranda McGowan (San Diego) for bringing to my attention the case of Butler v. Alabama DOT, No. 07-1335 (11th Cir. July 30, 2008). 

It appears to be a fairly typical employment case, except that the court entirely messes up the standard of review for reviewing a jury verdict.  Indeed, this case seems to be a pretty plain example of a court reaching to factfind in an employment case and using the wrong standard of review to do so. 

Plaintiff in this case won a jury verdict on racial disparate treatment claim of $150,000. She alleged a pattern of racially motivated conduct. 

Miranda points out the standard that the court uses for reviewing the denial of the defendant's motion for judgment as a matter of law:

We review de novo the district court's denial of a motion for judgment as a matter of law. See generally Nurse "BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1308 (11th Cir. 2007).  (footnote:  Because we are considering the denial of a motion for judgment as a matter of law, we have previously set out the facts in the light most favorable to the non-movant, Butler. See Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1149 (11th Cir. 2005); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192–93 (11th Cir. 2004).

Miranda asks: Where did the old standard of "no reasonable juror . . . . " go?  Where did it go, indeed.

PS

August 29, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Gould on Labor Law Reform

Gould_bill Bill Gould (Stanford emeritus and former Chair of NLRB) has just had published in Slate a proposal for labor law reform.  As is no surprise, Gould's proposals are ambitious and never to be confused with orthodox thinking in the area.  He notes the problems with "bad appointments" to the Board and long election delays, then proposes bipartisan (at least possible bipartisan) measures that might improve the NLRA--even under a stalemated political line-up, such as a President Obama and more than 40 Republican senators:

Secret ballots to resolve union representation rights are the way to go, and Obama should meet the Republicans halfway by saying so—and then add this all-important coda: Elections should continue only if the law ensures that voting is conducted expeditiously—for instance, within one or two weeks of the filing of a union's petition seeking recognition. This is the case in Canada, whereas in the United States, the resolution of union drives currently takes months and sometimes years. Quick elections are the key to meaningful reform because delay is the principal way in which labor law stacks the deck against employees. It allows employers to engage in one-sided anti-union campaigns of intimidation and coercion, with little possibility for remedy. . . . [U]ntil most of business moves toward [voluntarily expedited elections], Congress must make them address complaints quickly by imposing time limits for the NLRB is to issue a decision about whether to hold a union election or reinstate unlawfully dismissed workers. The agency's action on election disputes should be final and unappealable so that workers and management can get on with collective bargaining promptly. That there are no such mandates currently constitutes the heart of what ails American labor law.

Other reforms are also needed. For instance, the law should provide that unions have the right to communicate and address employees on company property. Today, only employers may do so. The NLRB must also be given the authority to punish companies through fines that double or triple the amount of back pay owed to workers who are illegally dismissed or demoted. The law could also spur collective bargaining with a provision for arbitration if labor and management are unable to agree on their own.

Then there is the composition of the NLRB. A Democratic president, if we next have one, should make appointments that are freer from partisan pressure from either side than they have been during the past decades. At the moment, board members are frequently reluctant to act promptly, and thus avert the crisis for union recognition caused by delay, because of the fear that their vote will be unpopular and diminish their chances of being reappointed. This has been true in both Democratic and Republican administrations. The next president should address this weakness by recruiting nominees from all parts of the country, not just the Washington-insider circle that has come to dominate federal administrative agencies. Also, appointees should be limited to one eight-year term. In this way the very best people will come to Washington, willing, like Cincinnatus, to return to their homes when their appointment ends.

Gould's thoughts on elections, and his implicit criticism of EFCA, fits with my own view of that bill as a second-best solution to a real problem.  I also like the notion that there are many reforms that--particularly as a package--may be acceptable to all parties and go far in improving the NLRA's ability to satisfy its goals.  But I'm not holding my breath that it'll actually happen.

-JH

August 29, 2008 in Labor Law | Permalink | Comments (3) | TrackBack (0)

The Definition of Dead on Arrival (DOA)

Barrels Courtesy of the Daily Labor Report this morning:

Despite earlier objections to a draft proposal from Democratic leaders in Congress and others, the Labor Department is issuing a proposed rule that would change the methods used to measure workplace exposures to toxic substances and hazardous chemicals, according to a notice of proposed rulemaking scheduled for publication in the Federal Register.

DOL says it would require that before agencies can issue rulemaking dealing with health issues, they must first solicit input on studies, scientific information, and data on frequency, intensity, and duration of worker exposure. DOL agencies would be required to publish an advanced notice of proposed rulemaking soliciting public information when developing risk assessments for health standards regulating occupational exposure to toxins and chemicals.

"In light of the [Occupational Safety and Health] Act and Mine Act's mandates that the Secretary set health standards based on the best scientific information available at the time of the agency action, it is particularly important that the Department seek out and receive all relevant data before proposing a health standard," the DOL proposal says.

Two quick thoughts:  (1) great, just what we need in the OSHA area, more hurdles to protecting workplace safety and health.  (2) the Bush DOL just can't help itself even as it approaches it lame duck period from further hindering employee rights in the workplace.

PS

August 29, 2008 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

The End of Disparate Impact Disability Claims in the UK?

Uk_flag Cross-posted on: Marquette University Law School Faculty Blog

Michael Connolly (Univ. of Surrey (UK)) provides this no-so good news for disability rights advocates from across the pond.

Michael's analysis, "The House of Lords Narrows the Meaning of Disability-Related Discrimination," appears in Green’s Employment Law Bulletin (Emp LB 2008 Issue 86 August 2008 1-5 ISSN 1352-2159) and is available on Westlaw.

Here's a taste:

The House of Lords’ decision in Lewisham Council v Malcolm [2008] UKHL 43 concerned the meaning disability-related-discrimination in the British Disability Discrimination Act 1995 (DDA 1995), which is functional equivalent of disparate impact. It centred on the housing provisions of the DDA 1995, but the judgment, overruling two long-established principles, is of great significance to the Act’s employment provisions. Under the DDA 1995, disability-related-discrimination is defined as less favourable treatment for a reason related to a person’s disability, which cannot be justified. The House of Lords’ judgment undermined two major and established principles. First, for the challenged treatment to be ‘related’ to the claimant’s disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment. Hence, an employer may now fire a postman with a concealed artificial leg for being too slow, or a secretary with undeclared dyslexia for ‘typing hopelessly misspelt letters’, so long as the employer had no reason to know of the disability.

Second, when identifying if the treatment was ‘less favourable’ the correct comparator is a person in the same circumstances save for the disability. Hence, where a restaurant has a ‘no dogs’ rule, the correct comparator is now a sighted customer with a dog, or where an employer fires a worker who is long-term absent because of his disability, the comparator is now a worker without a disability who was long-term absent. The rejected job applicant who could not type because of arthritis is now compared to a job applicant who could type. Until this case, long-standing case law considered that all these examples should raise a prima facie case to be decided at the justification stage. The judgment is questionable, for no better reason than it has reduced disability-related discrimination to disparate treatment, which is catered for elsewhere in the Act.

Interesting to consider how in comparison how disparate impact and disparate treatment are considered under the ADA.  DI claims are cognizable under the ADA (Raytheon), but given the number of such claims brought (forget those won), it might be America and the UK are similar as regards disparate impact claims.

PS

August 29, 2008 in International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

New Labor Movement Search Engine

Solicomm_2 The Workers' Activities Programme of the International Labour Organization has just launched a new search engine and communication device called SoliComm.  Here's a description:

The Solidarity Community Network (SoliComm.net) is a communications system designed especially for the labour movement.

SoliComm provides a powerful World Wide Web search engine which searches only union and union-related sites. It also provides free email for unionists, web-page hosting for labour organizations in developing countries, and computer conferencing facilities for online meetings and labour education.

The goal of the SoliComm project is ambitious but achievable: to make available all the information on the world's union-related web sites searchable from one site and then begin to categorize that information so that it is useful for union researchers, educators, leaders and members plus the general public.

rb

August 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2008

Labor Problems at Saratoga

Saratoga BNA's Daily Labor Report (subscription required) has an article on wage and hour violations (among others) at the Saratoga Race Course.  According to the DLR:

The New York State Department of Labor Aug. 27 announced that it has found significant violations of labor standards at the Saratoga Race Course, including violations of minimum wage and overtime requirements for backstretch workers. 

The department found that 80 percent of 110 backstretch workers interviewed were underpaid as the result of minimum wage, overtime, or other labor standard violations. About 75 percent of the workers interviewed received less than the state's minimum wage of $7.15 an hour, according to the department. The average weekly underpayment was $71.65 per week for so-called hot walkers, who often double as watchmen, and $82.31 for grooms, according to the department. The department estimated that of the 110 backstretch workers interviewed, 88 were underpaid and are collectively owed a total of about $7,000 in weekly underpayments. . . .

The violations were uncovered as the result of what the department described as a "proactive" investigation of the race course, which is located in Saratoga Springs, N.Y., and employs some 1,200 workers. . . . The department investigation found that 77 of the 88 trainers interviewed were in violation of recordkeeping requirements for time and payroll.

This says a lot about labor investigation can uncover and suggest that perhaps the federal DOL (and OSHA among others) should have more funding for its own investigations.

Hat Tip:  Dennis Walsh

-JH

August 28, 2008 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Strike Two for the NLRB

Nlrb If at first you don't succeed . . . it may be a sign that you're doing something wrong.  The NLRB didn't get that message the first time, but it might now.  In Local Joint Executive Board v. NLRB, the Ninth Circuit has now--for the second time--rejected the NLRB's attempt to conclude that an employer properly cancelled a dues check-off after a CBA with such a provision expired.  In 2000, a 3-2 Board concluded that a dues check-off provision automatically ends when the CBA expires.  The Ninth Circuit, however, agreed in part with the dissenters at the Board, who said that the Board majority's decision was based on cases involving check-off provisions that enforced union security clauses.  The court held that the Board did not adequately explain the reasoning of a check-off automatically expiring when no security clause was in the CBA, as was the case here.  Rather than trying to support its reasoning, the Board (again 3-2) held that the CBA itself limited the check-off to the duration of the CBA.

In the current decision, the court disagreed and held that the CBA didn't clearly and unmistakably waive the union's right to bargain over whether the check-off should end once the CBA expired.  The key was that the CBA language saying that the check-off will last for the duration of the contract is different from language stating that the provision will terminate once the contract expires.  This is classic a Katz/clear & unmistakable holding and was supported by past NLRB decisions making the same distinction. 

The court remanded to the Board, despite stating that the Board's delay in issuing its second decision was "deplorable" (it took the Board just short of five years to issue the decision following the court's first decision).  Given that the contract expired in 1995, this added delay is depressing.  Remand should be interesting though, as the Board will likely have to decide whether an employer can unilaterally change a dues check-off provision.  Needless to say, nothing will happen until the Board has more than 2 members.

Hat Tip:  Dennis Walsh (and an anonymous assist)

-JH

August 28, 2008 in Labor Law | Permalink | Comments (2) | TrackBack (0)

Scope of ERISA Remedies Further Defined in Forced Retirement Case

Gavel
In a case which may provide further insights into the scope of ERISA remedies, the Northern District of New has ruled in  Harris v. Finch, Pruyn & Co., No. 1:05-cv-951, (N.D.N.Y. Aug. 26, 2008) (no publication available yet) that back pay is unavailable under ERISA who were allegedly misled into retiring.

BNA Daily Labor Report explains:

A paper manufacturer does not owe back pay and lost benefits to 14 employees who were not reinstated after a strike and who allege they were misled into resigning and retiring so that they could access the benefits in their 401(k) plan accounts, the U.S. District Court for the Northern District of New York ruled Aug. 26.

Noting that there is a circuit split as to whether back pay is available under the Employee Retirement Income Security Act, Judge Frederick J. Scullin Jr. sided with courts that have found that back pay is not an equitable remedy under ERISA Section 502(a)(3) because it is measured by an employee's loss rather than an employer's gain.

The court found, however, that a genuine issue of material fact remained as to whether the 14 employees were entitled to have their retirements rescinded and their employment reinstated as forms of equitable remedies to address the alleged fiduciary breaches that led to their retirements.

In addition, the court said the employees had no legal remedy available under ERISA Section 502(a)(2). In so finding, the court rejected the employees' contention that the U.S. Supreme Court's recent decision in LaRue v. DeWolff, Boberg & Associates, 128 S. Ct. 1020, . . . allowed them to recover for their individual plan accounts rather than on behalf of the plan as a whole.

LaRue did not expand an ERISA Section 502(a)(2) claim to allow individual claims that are not based on losses to plan assets, the district court said. "Plaintiffs' alleged injuries--being induced to retire or resign--were solely individual in nature," the court said.

I couldn't disagree with the court more on the scope of equitable relief under Section 502(a)(3).  Back pay is an equitable, make-whole remedy and is consistent with types of relief which are available under the common law of trusts, upon which ERISA is based. 

On the other hand, I think the court may be trying to go out of its way to cabin the LaRue finding in the 502(a)(2) context to not allow individual claims in this type of case. But I do think the distinction between a fiduciary breach that cause an account to lose money and one that leads to a person cashing out of a plan makes some sense.

Here's hoping the 2nd Circuit provides some daylight to ERISA plaintiffs and reverses the district court on its 502(a)(3) holding.

PS

August 28, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Discrimination complaint filed against TPC Boston

First I would like to thank Paul, Rick, Jeff and Marcia for inviting me to be a guest blogger. 

Pga_tour It may not just be the LPGA that is discriminating in golf.  Yesterday, wbztv.com reported that eight former employees have filed discrimination complaints against the Tournament Players Club golf course claiming they were fired because of their age.  The men all are between the ages of 66 and 76 allege that they worked for the club for five years before they were fired this past spring and replaced with college-aged workers.  The complaint was filed on Monday with the Massachusetts Commission Against Discrimination seeking unspecified damages.  The TPC Boston is scheduled to host the Deutsche Bank Championship this weekend.

D. Aaron Lacy (AL)

August 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Last Call for Papers for AALS Employment Discrimination Secion Annual Meeting

Aals_logo Just a quick reminder that the due date for submitting paper for the AALS Section of Employment Discrimination Annual Meeting Panel is Sunday, August 31st.  The name of the program is: "If It Is Broken, Then Fix It: Needed Reforms to Employment Discrimination Law."

Here is the call for papers:

Employment discrimination, the subject of more than one-tenth of federal litigation, is in an ongoing state of controversy and flux.  In recent years, the Supreme Court has handled nearly two dozen cases on employment discrimination, issuing major decisions (for example) disallowing excessive pretrial dismissals of discrimination cases, tightening limitations periods for such cases, and narrowing the definition of who is "disabled" enough for coverage by discrimination laws.  Congress, in turn, repeatedly considers legislative "fixes" to legislatively repeal Court decisions narrowly interpreting statutory protections and to expand discrimination law coverage (e.g., a federal gay rights law, more coverage for religious discrimination).  Scholars similarly have critiqued numerous aspects of employment discrimination law, both doctrinal matters and theoretical questions such as the role of litigation and the capacity for law to effect social change.

This panel seeks to answer the questions, "what are the most "broken" aspects of discrimination law -- and how should they be fixed?"  The Section is choosing panelists by a call for papers on any topics relevant to improving employment discrimination law, doctrine, or theory.

Submitted papers may be between 5,000 and 35,000 words and may address any aspect of law relevant to improving employment discrimination law, doctrine, or theory.  Submitted papers must not be previously published but may be pieces submitted for publication on or after June 1, 2008. The papers chosen for inclusion in the panel will have the option (but are not required) of publication in the Employee Rights and Employment Policy Journal.  Submissions will be due by email to scott.moss@colorado.edu by August 31, 2008.

The panel will be held at the AALS annual meeting in San Diego, on January 9, 2009 from 10:30 am to 12:15 pm.  This is a wonderful opportunity to part of a panel at the AALS and get some PR for your piece.

PS

August 28, 2008 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2008

Income Inequality

Graph_down It's no secret that American workers have been facing tough times for a while.  Columnist Steven Pearlstein (Washington Post) looks at this issue and possible ways of addressing the problem:

Hey, good news on the income front: The Census Bureau reported yesterday that median earnings for full-time male workers rose by $1,653 last year, to $45,113, after adjusting for inflation.

Another year like that, and maybe the typical male worker will finally catch up to where he was in 1973.

Truth is, despite the squishy nature of income data, things haven't been so great for the middle and working class for some time. Every now and again you get a good year like last year, when wages and household incomes increased. That's usually at the tail end of an economic expansion. But over the past 35 years, the typical American household has managed to eke out only a 15 percent increase in its pretax income. During that same period, the productivity of the American worker -- the value of the goods and services produced per hour worked -- has increased by 90 percent.

So where did all that money go?

To some degree, it went to the stock and bond holders who invested capital in the new equipment and technology that made those workers more productive. You'd expect that from a well-functioning capitalist economy. What you wouldn't expect is that the rest of the income gains would go disproportionately to the households at the top of the income scale. According to data compiled by the Congressional Budget Office, in recent decades the top 10 percent of households have taken an ever-increasing share of the national income, at the expense of everybody else.

It would be neat if we could blame this upward redistribution on the economic policies of Ronald Reagan or George W. Bush, but for the fact that the trend lines also take in the Carter and Clinton administrations. Moreover, while more pronounced in the United States, there has been a similar trend elsewhere, including in countries with more egalitarian business environments such as Sweden and France. . . .

There's a good debate to be had on all of these ideas -- every one involves economic risks and trade-offs. But there is no debating that markets are doing a lousy job of distributing the benefits of economic growth and that another decade of stagnant wages and runaway inequality is unacceptable.

Pearlstein also looks at McCain's and Obama's attempts to fix the inequality--and notes that there are no easy solutions.

Hat Tip:  Dennis Walsh

-JH

August 27, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Labor Troubles at Agriprocessors

Agriprocessors_1 We've written a lot about the immigration raid at Agriprocessors' Iowa plant.  Apparently, that's not the company's only problem, as their Brooklyn facility has been enmeshed in a long-time labor dispute.  According to the Jewish Daily Forward:

Workers at the warehouse eventually voted in September 2005 to join the United Food and Commercial Workers union, which has also been involved in a scrappy battle to represent the workers at Agriprocessors’ Iowa slaughterhouse. After the election in Brooklyn, the company came back with an unusual argument. Lawyers for Agriprocessors said that the company had determined that 17 of the 21 workers who had voted were undocumented immigrants. Their status had not been brought up before, but after the union vote the company said that the immigrants were not eligible for employment, much less union membership. The workers went on strike and were soon replaced.

Since then, three rounds of judges have ruled that Agriprocessors must recognize the union, pointing to a 1984 U.S. Supreme Court decision that granted undocumented immigrants protection under the National Labor Relations Act. The company has appealed these decisions, and at the end of June, lawyers for Agriprocessors petitioned the U.S. Supreme Court to hear the case. The company’s petition argues that “if the votes of illegal workers are counted in union elections, unions may have an incentive to encourage illegal aliens to conceal their undocumented status.”

Experts in labor law say that the Agriprocessors case is not likely to be heard by the Supreme Court, due to the 1984 ruling, but the case has already succeeded in maintaining the status quo at the Brooklyn warehouse for three years. “Every day that goes by is one day less that they have to negotiate” for a contract, said Alvin Blyer, regional director of the National Labor Relations Board, a federal agency that has overseen the Agriprocessors case. “This delay is certainly very financially beneficial.”

Beyond the legal issues, the situation in Brooklyn opens a window onto the way Agriprocessors has treated workers outside its flagship Iowa slaughterhouse, and suggests that the complaints about working conditions that have arisen in Iowa were not isolated.

The situation at the Brooklyn plant also answers questions that have gone unanswered in Iowa. Most notably, it is unclear if the company knowingly employed undocumented workers, such as those who were arrested during the raid in Iowa. The company has pleaded ignorance. But the Brooklyn case suggests that long before the raid in Iowa, the company knew it had undocumented workers in its ranks and knew how to find them — when it was to the company’s benefit. Immigrant advocates say that the Brooklyn plant paints a clear picture of what this has meant for immigrant workers. . . .

One interesting point in the story, is that this facility also houses two other kosher meat-processors that are unionized, which underscores the point that a union isn't a business-killer.  As for Agriprocessors' legal argument, it's dead-on-arrival unless the Supreme Court wants to overrule Sure-Tan.  But, as the article emphasizes, even a loser case helps the employer because--particularly when employees have voted for a union--justice delayed is justice denied.

Read the full article--it's got a lot more detail on the dispute.

 

-JH

August 27, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Corrada on Title VII Religion, Active Learning

Corrada1 Today I was privileged to host at Chase Roberto Corrada (Denver), who generously gave two presentations in a single day.  In the first, he spoke about the current divide, in the religious discrimination context, between accommodation and disparate treatment cases, and how that often works to the disadvantage of employees.  His proposal:  integrate the two frameworks.  See Toward an Integrated Disparate Treatment and Accommodation Framework for Title VII Religion Cases.

In his second presentation, Roberto spoke about using full-semester experiential learning techniques in law school courses.  He described how, in Labor Law, he gets his students to form a union and negotiate the grading criteria, and how in Administrative Law, he gets his students to create a regulatory framework for a Jurassic Park-style dinosaur theme park.  He also described the recent empirical work he's been doing to assess student learning in such active-learning environments.

Roberto has a passion for both topics, and it really showed in his fantastic presentations. 

rb

August 27, 2008 in Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

LPGA Adopts English-Language Rule

Pak Today's USA Today reports:

All players who have been on the [LPGA] tour for two years could be suspended if they fail to pass an oral evaluation of their English proficiency starting at the end of the 2009 season. The tour announced the policy to its South Korean membership in a mandatory meeting Aug. 20 and has spoken to many players from other countries.

The LPGA explains:

"We're focusing on the fact that we're in the sports entertainment business and we have to interact with fans and sponsors," LPGA deputy commissioner Libba Galloway said. "We want to emphasize to our players that they need to be approachable."

Roberto Corrada (see above) is skeptical, noting that South Korean lady golfers have been kicking American butt recently.  Funny how LPGA has managed to get along just fine without this rule until now, and how (to the best of my knowledge) the men's PGA doesn't seem to need an English-only rule.

rb

August 27, 2008 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

GM Brags About Eliminating Employee Discount

Gm Yesterday, I noted in a post how Toyota is honoring its promise of no layoffs at an annual cost of $millions.  Today over at Prawfsblog, Adam Kolber describes how GM is spending millions bragging about the fact that it has stopped giving its employees a discount on its cars.  Stark contrast.

rb

August 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Second Edition of ABA's Fair Measure

4920043_bigVia Paul and the Blog of the Legal Times comes news of a new edition of an important ABA resource, Fair Measure: Toward Effecting Attorney Evaluations. The book was written for the ABA Commission on Women in the Profession by Joan Williams (Hastings) and Consuelo Pinto (Project for Attorney Retention). The ABA section on Labor and Employment Law collaborated as well.

From the ABA's page on the book:

This completely revised and updated Second Edition contains a current, comprehensive review of the psychological literature on stereotyping, and it outlines a step-by-step process for implementing and conducting performance evaluations that are free from bias. Additional material includes sample evaluation forms, performance evaluation training materials for supervising attorneys, and instructions for completing performance evaluations.

Gender bias continues to prevent women from achieving parity with their male counterparts. Developing an evaluation system that controls for hidden bias is crucial, given that attorneys' performance evaluations have a direct impact on their professional development, assignments, compensation, and, ultimately, partnership potential.

Great work and an important resource for firms.

MM

August 27, 2008 in Book Club | Permalink | Comments (0) | TrackBack (0)

Lily Ledbetter in Her Own Words

Ledbetter From Tony Mauro in the Legal Times:

A few minutes before Sen. Hillary Clinton spoke to the Democratic convention Tuesday night, a self-described "grandmother from Alabama" addressed the delegates with considerably less fanfare. The speaker was Lilly Ledbetter, who lost a 2007 Supreme Court 5-4 decision that has become one of the most criticized rulings of the Roberts Court. The Court ruled that her Title VII claim of pay discrimination at a Goodyear Tire plant in Alabama was filed too late. She should have made her claim years earlier, the majority said, when the company made the initial salary decision — even though she did not become aware of the disparity until years later.

"My job demanded a lot, and I gave it 100 percent," Ledbetter told the convention. "I kept up with every one of my male co-workers." The salary differentials, she said, "affected my family's quality of life then, and they affect my retirement now." She noted that in dissent, Justice Ruth Bader Ginsburg said the ruling made no sense in the real world. "She was right." In response to the ruling the House of Representatives passed a bill that would change Title VII to ensure that claims like hers would be valid, but in the Senate, Republicans have prevented a vote.

Obama has supported the Ledbetter Bill, while McCain has voted against it, saying that it would cost too much money in increased litigation.

My question is does anyone remember the last time a named Supreme Court litigant addressed a political national convention?

PS

August 27, 2008 in Agenda 2009 | Permalink | Comments (3) | TrackBack (0)

When Is a United Way CEO Worth 1.2 Million A Year?

Unitedway_logo Never.

From the Charlotte Observer:

For months, the United Way of Central Carolinas board said Gloria Pace King was worth every penny of her controversial $1.2 million pay package.

Tuesday, 37 of those board members unanimously called on their longtime CEO to resign or be fired.

King's fall was breathtakingly quick, but not clean . . . .

And the most fundamental question of all: How did a group that includes some of the region's savviest corporate leaders allow all of this to happen?

I think the Board's statement that, “We owe the community a sincere apology,” is probably not quite gonna get it done.  Moreover, expect Ms. King to sue for the remaining parts of her salary and benefits.

What a mess.

PS

August 27, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)