December 27, 2008
Issues We're Not Going to Be Seeing at the Supreme Court Soon
It's the time of year to reflect back, and so I'll reflect back on the Supreme Court's most recent conference and the labor and employment petitions that the Court denied. There were five of them (the links are to the appellate court opinions): Alabama v. Pope; Philadelphia v. Lawrence; Phillips v. Gaston County; Bowie v. Personnel Bd. of Jefferson County; and Waris v. Harris County Pub. Health & Environmental Services.
The issue in Pope was whether an individual who wins a civil rights case has a right under federal law to recover attorneys’ fees from someone else who shared in that victory. In the underlying case, the state had eventually taken the side of a white worker who had lost a promotion because of a court-imposed requirement for racial preferences in state employment, and the lower courts had awarded that worker fees from the state on the theory that the worker was a prevailing party. The Eleventh Circuit Court upheld that award against the state of Alabama in a case involving a court-imposed requirement for racial preferences in state employment actions.
The issue in Lawrence involved whether the city of Philadelphia owes back pay for overtime to paramedics who do not regularly fight fire. The case turned on whether those paramedics had "legal authority and responsibility" for fire suppression activities within the meaning of section 203(y) of the FLSA. The Third Circuit Court ruled that the paramedics were primarily medical workers and were not exempted from the overtime pay provision.
In Phillips, the issue involved the standard to be used to determine whether a county police officer employee had a property interest in continued employment under North Carolina law. The Fourth Circuit had held not, but had further affirmed the district court's ruling that the officer was discharged for cause.
In Bowie, the Eleventh Circuit had held that a court appointed receiver in bankruptcy was not an employer for purposes of Title VII (and would also have judicial immunity even if Title VII allowed a person to be individually liable) such that the receiver may not be held liable under Title VII for actions taken by him or her as a receiver.
In Waris, the Fifth Circuit had held that the pro se plaintiff failed to establish prima facie case of race or national origin discrimination in connection with the termination of his employment seven weeks after he was hired as clinic manager for defendant county, because he presented no evidence of disparate treatment and that the district court did not act improperly in declining to exercise supplemental jurisdiction of plaintiff's state law claims once summary judgment was granted on federal claims.
The only one that surprised me was the Pope case. I would have thought that the result in that case would have rubbed the majority of the Justices the wrong way. The others all seem to be relatively narrow issues, not presenting much that is in great controversy at the moment.
Hat tip: Paul Secunda
December 26, 2008
Yamada Starts Blog: Minding the Workplace
David Yamada (Suffolk) has just started a new blog, Minding the Workplace. The target audience is folks interested in workplace dignity, bullying, and psychological health topics. Here's a description:
Welcome to Minding the Workplace, the blog of the New Workplace Institute. This blog is dedicated to commentary about work and employment relations, as well as discussing and sharing useful books, articles, media programs, and Internet sources about the workplace.
Welcome to the blogosphere, David!
December 24, 2008
Recently Published Scholarship
- Raja Raghunath, Stacking the Deck: Privileging “Employer Free Choice” Over Industrial Democracy in the Card-Check Debate, 87, Nebraska L. Rev.329 (2008).
- Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marquette L. Rev. 1 (2008).
- Scott L. Cummings, Law in the Labor Movement’s Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight, 95 California L. Rev. 1927 (2007).
- Leonard M. Niehoff, Peculiar Marketplace: Applying Garcett v. Ceballos in the Public Higher Education Context, 35 The J.College Univ. L.75 (2008). Butzel Long P.C.
- Joan M. Shepard, The Family Medical Leave Act: Calculating the “Hours of Service” For the Reinstated Employee, 92 Marquette L. Rev. 173 (2008).
- Roberto Concepcion Jr., Organizational Citizenship Through Talent Management: An Alternative Framework to Diversity in Private Practice, 42 Columbia J.L. & Social Problems 43 (2008).
- Adam J. Bernstein, Retaliatory Litigation Conduct after Burlington Northern & Santa Fe Railway Company v. White, 42 Columbia J.L.& Social Problems 91 (2008).
Offers of Settlement in Discrimination / Civil Rights Cases
Harold Lewis, Jr. (Mercer) and Thomas Eaton (Georgia) have just posted on SSRN their article The Contours of a New FRCP, Rule 68.1: A Proposed Two-Way Offer of Settlement Provision for Federal Fee-Shifting Cases. Here's the abstract:
Our research began with interviews of experienced attorneys who prosecute and defend civil rights and employment discrimination cases. We set out to determine the extent to which offers of judgment under Federal Rule of Civil Procedure 68 ("FRCP 68" or "Rule 68") are made in these type of cases and the reasons why that Rule is or is not used. We focused on civil rights and employment discrimination litigation because it is in those cases where Rule 68 has the greatest potential to stimulate an early resolution of the dispute. Rule 68 provides the offeror greater leverage in civil rights and employment discrimination cases than in most other types of civil litigation, because the potential sanction to the prevailing offeree who turns down and fails to improve upon the offer includes the forfeiture of post-offer statutory attorneys' fees. And in these cases, fees often constitute the greater part of a plaintiff's recovery.
In this, our second report, we discuss how Rule 68 might be amended to make it a more effective tool for stimulating the prompt and fair resolution of civil rights and employment discrimination actions. Our suggested potential amendments are drawn largely, but not entirely, from two sources: the comments and suggestions made by the attorneys we interviewed, and the practices that have evolved in states that have similar provisions in their respective rules of civil procedure. In very broad terms, we discuss (1) having a separately numbered subdivision of the Rule for cases arising under federal fee-shifting statutes; (2) modifying the terminology of Rule 68 to describe more explicitly the mechanics and sanctions of the Rule; (3) allowing plaintiffs, not just defendants, to initiate offers under a "two-way" rule; (4) devising a set of incentives and sanctions calculated to promote the timely and fair resolution of disputes without unduly threatening either party; and (5) incorporating time frames for making and responding to offers.
Secunda on Wal-Mart Settlement
Our own Paul Secunda was quoted in today's Wall Street Journal on the Wal-Mart settlement we recently posted on. As Paul notes, one of Wal-Mart's reasons for settling now may be the new political realities in the federal government and the possibility that EFCA or something like it could be passed:
Paul M. Secunda, an associate professor at Marquette University Law School, suggested Wal-Mart wanted to settle the lawsuits not just to avoid potentially more costly defeats in the courtroom, but to resolve issues that might be used to argue for passage of the Employee Free Choice Act. The legislation, expected to be considered by Congress next year, is fiercely opposed by Wal-Mart because the company worries it will make it easier for workers to unionize.
"This is part of their overall strategy to get their labor house in order, and compared to what unionization might cost them, I think they probably realized it was a small price to pay," Mr. Secunda said.
Nice job, Paul!
December 23, 2008
Record Wage & Hour Settlement
The New York Times, in an article co-authored by Stephen Greenhouse, is reporting that Wal-Mart (who else?) has just agreed to a $352 million or more settlement over off-the-clock claims. We've reported on some previous big Wal-Mart settlements, but this one is huge--and reported to be the largest wage and hour settlement in history. According to the NY Times:
After years of being embarrassed by lawsuits over its wage practices, the company agreed to settle 63 cases pending in federal and state courts in 42 states. The workers and their lawyers will receive at least $352 million, and the payments could reach $640 million, depending on how many claims affected workers submit. . . . The newly settled cases involved hundreds of thousands of current and former hourly employees. It is unclear how much the average employee will receive, but the sum could be several hundred dollars. . . .
The dozens of wage-and-hour suits against Wal-Mart accused the company and its managers of various illegal tactics. Those included forcing employees to work unpaid off the clock, erasing hours from time cards and preventing workers from taking lunch and other breaks that were promised by the company or guaranteed by state laws.
The settlement — which wipes out all but 12 pending wage-and-hour lawsuits against Wal-Mart — also gives the company a cleaner slate as a new administration enters the White House. President-elect Barack Obama has indicated he will make wage-and-hour enforcement a priority, and groups critical of Wal-Mart suggested that the company had reached the settlement to avoid becoming a target of stepped-up enforcement. . . .
The article does a nice job trying to put the settlement in context, including some people's thoughts that the amount isn't as significant as some recent jury verdicts that Wal-Mart has faced. Even if true, this is a real victory for the employees involved. Although it would have been far better if they had gotten paid what they deserved at the time, even a delayed and partial payment is better than nothing and probably much appreciated during these economic times.
Really bad news just in from the Bureau of Labor Statistics:
In November, employers took 2,328 mass layoff actions, seasonally adjusted, as measured by new filings for unemployment insurance benefits during the month, the Bureau of Labor Statistics of the U.S. Department of Labor reported today. Each action involved at least 50 persons from a single employer; the number of workers involved totaled 224,079 on a seasonally adjusted basis. The number of mass layoff events in November increased by 188 from the prior month, while the number of associated initial claims decreased by 8,389. Over the year, the number of mass layoff events increased by 999, and the number of associated initial claims increased by 84,408. In November, 874 mass layoff events reported in the manufacturing sector, seasonally adjusted, resulting in 98,408 initial claims. Over the month, mass layoff events in manufacturing increased by 239, and initial claims increased by 11,005, the fourth consecutive over-the-month increase for both.
From the start of the recession in December 2007 through November 2008, the total number of mass layoff events (seasonally adjusted) was 20,712, and the number of initial claims seasonally adjusted) was 2,108,743.
Hat tip: Carol Furnish.
Glenn ERISA Benefit Review Standard Starts to Negatively Impact Plaintiffs
As readers might recall, the Supreme Court case of Metlife v. Glenn from this past basically left the Firestone review standard for denial of benefits alone and held that a conflict of interest that a dual-role insurer has is just one factor to take into account in determining whether the plan administrator abused his discretion in denying benefits to a plan participant or beneficiary.
I predicted back then that this would lead to more ERISA plaintiffs losing their denial of benefit claims under Section 502(a)(1)(B):
Prediction: there will be no uniformity or predictability in these "combination-of-factors method of review" cases and the conservative bent of the lower federal courts will mean that employee participants and their beneficiaries will continue to lose these denial of benefit cases involving dual-role insurers at an alarming rate.
Unfortunately, it looks like I am turning out to be right. Exhibit A: Champion v. Black & Decker (U.S.) Inc., No. 07-1991 (4th Cir. 12/19/08). The Fourth Circuit in Champion found that a woman was properly denied her disability benefits once it no longer modified the standard of review to account for the conceded conflict of interest, and rather found the conflict, under Glenn, to just be “one factor” as part of its deferential review.
At this point, Congress needs to amend the provisions of ERISA concerning review of denial of benefits to put more teeth into the law and to hold claim administrators more accountable for their claim decisions.
Enforcing Promises of Lifetime Health Benefits
Rockwell Automation and its successor companies promised, in a collective bargaining agreement signed with the United Auto Workers, that
The Health Care . . . Coverages an employee has under this Article at the time of retirement or termination of employment at age 65 or older . . . shall be continued thereafter provided that suitable arrangements can be made with the Carrier(s). Contributions for coverages so continued shall be in accordance with [another provision of the CBA].
This contract language, the district court concluded "unambiguously promises lifetime benefits." The defendants appealed, arguing that the following provision of the CBA limits retiree insurance coverage to the duration of the CBA:
This [Insurance] Agreement and [Insurance] Program as modified and supplemented by the [Insurance] Agreement shall continue in effect until the termination of the Collective Bargaining Agreement of which this is a part.
Not so, concluded the Sixth Circuit. General durational clauses such as this refer only "to the length of the CBAs and not the period of time contemplated for retiree benefits." They therefore "cannot trump contractual promises of lifetime retiree healthcare benefits."
As Mitch points out, this is a major case. The Big Three and their myriad suppliers (a large proportion of which are in the Sixth Circuit) are looking to retiree health benefits as one way of cutting legacy costs. Cole takes many of these retirement benefits plans off the table -- at least those plans with contractual language similar to that at issue in Cole.
But retirees shouldn't be popping any corks -- the bottles may be filled with vinegar, for two reasons. First, Cole itself distinguishes an earlier case which had held that a company may not have to pay for retiree benefits if the facility covered by the CBA closes. Second, companies can file for Chapter 11 bankruptcy and walk away from their CBAs as part of the reorganization, as the Northwest Flight attendants case demonstrated a couple of years ago. Cole thus may make plant closings and bankruptcy look more attractive to automakers and their suppliers looking to slash legacy costs.
For more on how companies can use bankruptcy to reject collective bargaining agreements, see my article (with Donald Smith) Reconciling Labor and Bankruptcy Law: The Application of 11 U.S.C. Section 1113, 2001 MSU L. Rev. 1145 (2001).
OKCU Law Under Fire for Gender Discrimination and Harassment
Four Oklahoma City University law professors submitted a confidential memo to the OCU attorney in October 2007 detailing alleged discrimination and harassment incidents.
It outlines allegations of sexual harassment, pay disparity and insensitivity.
The female professors also complained the OCU law school has no regular civil rights course, criminal law classes don’t cover rape, and the landmark abortion case Roe v. Wade is only covered sporadically in constitutional law.
The memo was sparked by two incidents: the alleged sexual harassment of two female professors at Dean Lawrence Hellman’s home in July 2007 and the all-male panel chosen for a Constitution Day program in September 2007.
"These incidents caused us to summarize and verbalize our longstanding belief that the OCU law faculty exhibit discriminatory attitudes and behavior that are harming and have harmed our professional careers and quality of life,” the women wrote . . . .
The memo notes the lack of women on a faculty appointment committee, which regularly included two university professors who are "openly hostile” to the idea of giving special consideration for women and minorities.
Some interesting questions raised by this memo: does the lack of course offerings, or the coverage of certain topics, evidence gender discrimination? How about if a law school panel or a faculty committee does not contain any female professors? Of course, these questions must be answered in the larger context of the work environment, but they are interesting allegations nonetheless.
Wondering how this "confidential" memo made its way into the news media?
The memo, which is dated Oct. 10, 2007, was included with the Dec. 2 discrimination lawsuit filed in federal court in Oklahoma City by professor Danne Johnson.
Johnson is one of the women responsible for the memo, but the rest of the names in it have been blacked out.
This case has the potential of causing waves in the law school world, so I plan to further updates as they become available.
Hat Tip: Jack Sargent
Recently Published Scholarship
- Ezekiel J.N. Fletcher, De Facto Judicial Prremption of Tribal Labor and Employment Law, p. 435.
- Vicki J. Limas, The Tuscarorganization of the Tribal Workforce, p. 467.
- Wenona T. Singel, The Institutional Economics of Tribal Labor Relations, p. 487.
- Kaighn Smith, Jr., Tribal Self-Determination and Judicial Restraint: The Problem of Labor and Employment Relations within the Reservation, p. 505.
- Bryan H. Wildenthal, How the Ninth Circuit Overruled a Century of Supreme Court Indian Jurisprudence-And Has so Far Gotten Away with It, p. 547.
Recently Published Scholarship
Articles from the Second Annual Colloquium of Scholarship in Labor and Employment Law
University of Colorado Law Review
Volume 79, Issue 4, 2008
- Richard Moberly, Protecting Whistleblowers by Contract, p. 975.
- Alex B. Long, Retaliatory Discharge and the Ethical Rules Governing Attorneys, p. 1043.
- Paul M. Secunda, Whither the Pickering Rights of Federal Employees?, p. 1101.
- Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment 'Because of Sex', p. 1151.
- Michael J. Zimmer, A Chain of Inferences Proving Discrimination, p. 1243.
- Jessica L. Roberts, Accommodating the Female Body: A Disability Paradigm of Sex Discrimination, p. 1297.
- Matthew T. Bodie, Mother Jones Meets Gordon Gekko: The Complicated Relationship Between Labor and Private Equity, p. 1317.
- D. Wendy Greene, Title VII: What's Hair (and Other Race-Based Characteristics) Got to Do with It?, p. 1355.
December 22, 2008
Counting Potential Votes for EFCA
If you are a hard-core political junkie and/or a numbers freak, you're probably already well-acquainted with the website, fivethirtyeight.com. It's the brainchild of baseball numbers nerd (I say that as complementary as possible) Nate Silver, whose regression-based prediction for the presidential race this year was eerily on target. Although a bit outside his number-crunching expertise, he has an interesting post on the potential votes for EFCA in the Senate--focusing in particular on the need for cloture to shut down an expected filibuster (I'll forgive him for describing EFCA as "seemingly obscure"):
[T]he margin of error between the passage and failure of the bill in the Senate is going to be very, very thin.
In 2007, 51 senators voted for cloture on EFCA -- all Democrats except Tim Johnson, who was still absent from the Senate at that time, plus a lone Republican, Pennsylvania's Arlen Specter. That left the Democrats 9 votes short of passage -- votes which, in theory, they might now have. Johnson is back in the Senate, and they have picked up seats in Alaska, Colorado, New Hampshire, New Mexico, North Carolina, Oregon, Virginia, and are on the verge of doing so in Minnesota. That would give them 60 votes and 60 exactly, if and when replacement senators are appointed in Illinois, Colorado and New York.
Except that, Democrats are in danger of losing at least one vote: Arkansas' Blanche Lincoln, who has suggested that she is "undecided" on the measure. Arkansas has very low union participation: between its manufacturing and construction sectors, 6.0 percent of its workforce participates in unions, about half the national average. . . .
[If the Democrats] lose Lincoln, then [keeping] Specter only gets the Democrats to 59. Are there any other Republicans who might flip? Three others -- Ohio's George Voinovich, and Maine's Susan Collins and Olympia Snowe -- have received at least $100,000 in union contributions since 2003. Another wild card might be Alaska's Lisa Murkowski; Alaska is a highly unionized state, and the unions have sometimes been supportive of her. If Sarah Palin decides to run against her in 2010, Murkowski will need substantial support from union members to have a chance of defending her seat. Still, all four voted against cloture when the bill came up in 2007, and if Obama's coattails would ordinarily be worth something, that momentum is mitigated by the loss of face that the unions suffered on the auto bailout, when the UAW's public relations effort when nightmarishly.
Most likely, then, the Democrats will need to hold both Lincoln and Specter, as well as win the seat in Minnesota. If any of these contingencies fall through, EFCA faces an uphill battle.
This analysis may be overly optimistic. I'm still not convinced that all Democrats will get on board. Depending on how strongly the Obama Administration pushes EFCA and whether it's brought as a stand-alone bill, there could be more Democratic defections. Stay tuned.
The End Of The UAW As We Know It?
The Washington Post has two recent pieces on the UAW and the recent automakers bailout, with the theme in both centered on the union's declining relevance. I think both are a bit too down on the UAW, as the union has done a pretty good job handling some very tough economic realities over the past few years (as the Warren Brown piece notes, "despite claims to the contrary in White House and Capitol Hill bailout chatter, the UAW repeatedly has taken pay and benefits cuts to help the companies stay in business."). But those harsh realities are significant for the labor movement in their own right.
The first article examines whether the White House bailout plan negates any purpose for the UAW:
The language of the loan agreement sets specific "restructuring targets" that General Motors and Chrysler must use their "best efforts" to meet. Compensation must be made "competitive" to that of nonunion workers, and work rules must be "competitive" with those at nonunion plants. The companies also must reduce compensation to workers who have been laid off -- the jobs bank -- and at least half of the company's payments into retiree health care must be made in stock, not cash. If the companies fall short of those targets, they are required to explain why. The payment in stock makes the health fund more risky. The wage concessions could force average wages down to $24 an hour from $28 an hour, analysts said. . . .
Those and other concessions would essentially erase the significant distinctions between union and nonunion auto workers, and the lack of such union worker advantages would render moot the union's fundamental purpose, some industry analysts and labor experts said.
In the second piece, Warren Brown strikes a similar chord:
The UAW's failure to organize foreign rivals in America has undermined the value of the union's employment agreements with Detroit. As long as workers at nonunion companies receive lower pay than their counterparts at UAW-represented rivals, the union will be under pressure to make concessions at the bargaining table.
The federal bailout loan agreement greatly increases that pressure. The money will help the companies, which long ago began an aggressive restructuring of their operations. But its terms of agreement mean that the UAW will have to live with less, which means that nonunion workers will be asked to live with the same thing.
In some ways, this situation is unique in that the Detroit automakers have had a particularly bad business model long before the economic crisis began. The automakers' problems have to hit the UAW, no matter what the union does. On the other hand, despite factors unique to the auto industry, the UAW's troubles reflect in part the difficulty of our traditional collective bargaining model in a more globally competitive economy. Whether and to what extent unions and labor law can adjust is still an open book (shameless plug: I've written some on this topic with my father, and many others have as well).
Hat Tip: Dennis Nolan
December 21, 2008
Friedman Publishes Biography of Judge Wisdom
Joel Friedman (Tulane) has just published Champion of Civil Rights: Judge John Minor Wisdom (LSU Press; available at Amazon.com; gift wrapping available). Here's a description of the book:
One of the least publicly recognized heroes of the civil rights movement in the United States, John Minor Wisdom served as a member of the U.S. Court of Appeals for the Fifth Circuit from 1957 until his death in 1999 and wrote many of the landmark decisions instrumental in desegregating the American South. In this revealing biography, law professor Joel William Friedman explores Judge Wisdom's substantial legal contributions and political work at a critical time in the history of the South.
In 1957, President Eisenhower appointed Wisdom to the Fifth Circuit, which included some of the most deeply segregated southern states: Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. In the tumultuous two decades following its decision in Brown v. Board of Education, the Supreme Court issued only a few civil rights decisions, preferring instead to affirm Fifth Circuit Court opinions or let them stand without hearing an appeal. Judge Wisdom, therefore, authored many of the decisions that transformed the South and broke down barriers of all kinds for African Americans, including the desegregation of public schools.
In preparing this first full-length biography of Judge Wisdom, Friedman had unrestricted access to Wisdom's voluminous repository of personal and professional papers. In addition, he draws on personal interviews with law clerks who served under Judge Wisdom, resulting in a unique, behind-the-scenes account of some of the nation's most important legal decisions: the admission of the first black student to the University of Mississippi, the initiation of contempt proceedings against Mississippi Governor Ross Barnett, and the destruction of obstacles that had previously kept black Americans from voting. Friedman also explores Wisdom's political life prior to joining the federal bench, including his pivotal role in resurrecting the Louisiana Republican Party and in securing the Republican presidential nomination for Eisenhower.
A compelling account of how a child of privilege from one of America's most socially and racially stratified cities came to serve as the driving force behind the legal effort to end segregation, Champion of Civil Rights offers judicial biography at its best.