Workplace Prof Blog

Immigration And The American Workplace

The New York Times has recently been producing an interesting series on immigration in the U.S., which has included quite a bit on work-related issues.  One article explored the effects of the recent economic crisis on immigrant and native workers in Morristown, Tennessee--a town that has had a lot of interesting labor issues, which my colleague Fran Ansley has been heaving involved with.  There is an accompanying audio slideshow.  The series also has pages with work statistics for immigrant workers and a really interesting interactive map showing patterns of immigration in the U.S.  Finally, if the bloviating on this blog isn't enough for you, the Times has a "Room for Debate" page that has comments from a wide range of people.

It's a great series, so check it out.

-JH

The Impact Of Prison Closings

The Washington Post recently had a story on an increase in prison closings, particularly minimum-security prisons that often provide jobs and prisoner labor for local communities.  Both local officials and prison guard unions--particularly in New York, which is pulling back on its harsh Rockefeller drug laws--have been trying to fight the closings:

New York is facing a $13 billion deficit, and a falling inmate population, and Gov. David A Paterson (D) has proposed saving about $26 million by shuttering four of the state's prison facilities, including Camp Pharsalia and nearby Camp Georgetown. Faced with the prospect of losing a big part of their economic base, these small, distressed towns and cities are banding together with a common cry: "Save Our Prison!". . .

It's a conflict being played out across the country. The number of inmates boomed in the 1980s and 1990s, in part because of high crime rates and stiff mandatory-sentencing laws that particularly targeted drug offenders. States rushed to build additional prisons to keep up with what appeared to be a growth industry. And many struggling, mostly rural, communities came to see prisons as a substitute for the family farms and the small manufacturing plants that were vanishing. . . .

Norwich Mayor Joseph P. Maiurano has calculated the cost, for his city, and for surrounding Chenango County, one of New York's poorest: Fifty-nine corrections officers, and their family members, may have to leave the area for jobs in other facilities. About 40 local businesses will lose procurement funds. More than 50 local organizations benefit from the work the inmates provide.

The prison is a major employer, but it also has a direct impact on other services, such as postal services. The local post office is largely supported by the huge volume of inmate mail. With the loss of the prison, residents fear the post office could close, too.

Despite rural communities' attachment to their prisons, many experts dispute whether correctional facilities serve a long-term economic benefit. Gregory M. Hooks, a sociology professor at Washington State University, who analyzed the economies of prisons, said that among other problems, the pool of free inmate labor eliminates the pool of low-paid manual labor jobs, further depressing local economies. Prisons make communities dependent but without much return to the community, because the jobs are secured for life. And, he said, a local prison may make an area less attractive to other types of businesses, particularly those catering to tourists. . . .

The Pharsalia inmates -- the vast majority of them from New York City -- perform a variety of duties, including maintaining horse and ski trails, working in the public parks and thinning the forests. Maiurano estimated that for the city alone, he would need to hire four additional workers to make up for the loss of the free inmate labor.

Hat Tip:  Dennis Walsh

-JH

The PBGC's Investment Strategy

The Boston Globe is reporting on what turned out to be a very bad investment move by the Pension Benefit Guaranty Corporation.  Apparently, the PBGC decided to change its normally conservative strategy for investing its $64 billion in insurance funds (typically bonds) by putting much of the money in stocks, real estate, private equity funds, and emerging foreign markets.  The timing of the move?  Just months before the stock market collapse:

The agency refused to say how much of the new investment strategy has been implemented or how the fund has fared during the downturn. The agency would only say that its fund was down 6.5 percent - and all of its stock-related investments were down 23 percent - as of last Sept. 30, the end of its fiscal year. But that was before most of the recent stock market decline and just before the investment switch was scheduled to begin in earnest. No statistics on the fund's subsequent performance were released.

Nonetheless, analysts expressed concern that large portions of the trust fund might have been lost at a time when many private pension plans are suffering major losses. The guarantee fund would be the only way to cover the plans if their companies go into bankruptcy.

"The truth is, this could be huge," said Zvi Bodie, a Boston University finance professor who in 2002 advised the agency to rely almost entirely on bonds. "This has the potential to be another several hundred billion dollars. If the auto companies go under, they have huge unfunded liabilities" in pension plans that would be passed on to the agency. In addition, Peter Orszag, head of the White House Office of Management and Budget, has "serious concerns" about the agency, according to an Obama administration spokesman. . . .

However, Charles E.F. Millard, the former agency director who implemented the strategy until the Bush administration departed on Jan. 20, dismissed such concerns. Millard, a former managing director of Lehman Brothers, said flatly that "the new investment policy is not riskier than the old one." He said the previous strategy of relying mostly on bonds would never garner enough money to eliminate the agency's deficit. "The prior policy virtually guaranteed that some day a multibillion-dollar bailout would be required from Congress," Millard said. He said he believed the new policy - which includes such potentially higher-growth investments as foreign stocks and private real estate - would lessen, but not eliminate, the possibility that a bailout is needed. Asked whether the strategy was a mistake, given the subsequent declines in stocks and real estate, Millard said, "Ask me in 20 years. The question is whether policymakers will have the fortitude to stick with it." . . .

The agency's action has also been questioned by the Government Accountability Office, the investigative arm of Congress, which concluded that the strategy "will likely carry more risk" than projected by the agency. "We felt they weren't acknowledging the increased risk," said Barbara D. Bovbjerg, the GAO's director of Education, Workforce and Income Security Issues.

Analysts also believe the strategy would not have been approved if the government had foreseen the precipitous decline in the stock market. Now, they warn about a "perfect storm" scenario in which the agency's fund plummets in value just as more companies go into bankruptcy and pass their pension responsibilities onto the insurance fund. Many analysts say it is inevitable that the agency will face significantly increased liabilities in coming months.

Remind me not to go to the PBGC for advice on my 401k.

Hat Tip:  Matt Bodie

-JH

Cox on ADA Amendments

Jeanette Cox (Dayton) has just posted on SSRN her article (forthcoming Indiana L.J.) Crossroads and Signposts: The ADA Amendments Act of 2008.  Here's the abstract:

Although the apparent purpose of the January 1, 2009 amendments to the Americans with Disabilities Act is solely to broaden the ADA's protected class, the manner in which the amendments achieve this purpose erodes the statute's explicit textual support for understanding persons with disabilities as a politically subordinated minority. The amendments also strengthen the statutory link between the biological severity of a person's disability and that person's right to sue for ADA accommodations. Accordingly, for some courts, the amendments will reinforce the perception that the ADA differs from traditional civil rights law.

Federal courts' understanding of ADA's relationship to traditional civil rights law will shape courts' resolution of unresolved questions about the ADA's scope. Because the ADA, as amended, will now enable more plaintiffs to proceed past the preliminary question of membership in the ADA's protected class, federal courts will soon be forced to confront broad questions relating to the ADA's application. Resolution of these questions will largely turn on courts' understanding of the conceptual relationship between the ADA and traditional civil rights statutes, an underlying question which the recent amendments will unintentionally shape.

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Politico Debates EFCA

Politico is sponsoring a debate this week on the Employee Free Choice Act.  Here's a description, from Moderator Fred Barbash:

This is the first in a series of POLITICO debates on national issues that matter. POLITICO invited proponents and opponents of the Employee Free Choice Act (called "card check" by its opponents) to make their best cases. On Wednesday, we will publish rebuttals from each side and open the Arena to comments from regular Arena contributors and readers. This debate accompanies a special package by POLITICO staff and guest writers published online and in POLITICO's print edition.  This piece gives you the current state-of-play.

There's a terrific cast of participants:

• Anna Burger, SEIU
• Thomas J. Donohue, U.S. Chamber of Commerce
• Terry O'Sullivan, Laborers International Union
• Keith Smith, NAM
• Cynthia Estlund, NYU
• James Sherk, Heritage Foundation
• Paula B. Voos, Rutgers
• Tom Gies, Crowell and Moring
• Peter J. Hurtgen, Morgan Lewis & Bockius

Hat tip: Tom Gies.

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EEOC Violated FLSA, Arbitrator Rules

From today's Daily Labor Report (subscription required):

The Equal Employment Opportunity Commission willfully violated the Fair Labor Standards Act by requiring certain EEOC investigators, mediators, and paralegals to take compensatory time off rather than overtime pay for excess hours worked, an arbitrator ruled March 23 (National Council of EEOC Locals No. 216 and EEOC, Arb. Steven M. Wolf, FMCS Case No. 071012-00226-A, 3/23/09).

Granting for the most part a grievance filed by the EEOC employees' union, Arbitrator Steven M. Wolf found that EEOC has been violating its union contract and the FLSA since 2003 by not allowing many nonexempt employees to obtain overtime pay when they work more than 40 hours a week or 80 hours per two-week pay period.

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Yuracko on Sex and Race

Kim Yuracko (Northwestern) has just posted on SSRN her article (forthcoming Northwestern L. Rev.) The Antidiscrimination Paradox: Why Sex Before Race?.  Here's the abstract:

This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory - the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture - in particular society's ongoing commitment to racial transcendence and gender essentialism.

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Suk: Decouple Family Leave & Antidiscrimination

Julie Suk (Cardozo) has just posted on SSRN her article (forthcoming Columbia L. Rev.) Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict.  Here's the abstract:

The work-family conflict is a significant barrier to women's equality in the workplace. As many commentators have noted with envy, the United States stands apart from most European countries in its failure to give women a legal right to paid maternity leaves. This Article argues that the United States' potential for reconciling the work-family conflict is undermined by the predominance of antidiscrimination law in tackling the problem. To expose this American idiosyncrasy, this Article develops a thorough comparative analysis of successful European models for work-family reconciliation. The unique trajectory of U.S. antidiscrimination law has pushed family and medical leave into a single legal regime, leading to maternity leaves that are grossly inadequate and medical leaves that are easily abused. In France and Sweden, by contrast, maternity is given special, generous protections, while sickness leaves are less generous and administered separately. European countries' laws are paternalistic towards women, protecting the special relationship between a woman and her child. The American amalgamation of family and medical leave is the result of an antidiscrimination framework that combats paternalism and gender stereotypes, such as the assumption that women, rather than men, tend to be primary caregivers. But today, due to the costs and fears of abuse of sick leaves, treating maternity the same as illness forecloses the possibility of generous maternity leaves. This Article critiques both the American antidiscrimination approach as well as the gender-conscious European family-policy approach to synthesize new ways of reorienting the American legal frameworks for family and medical leave.

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Selmi On Improving Conditions For Low-Wage Workers Through Unionism And Education

Michael Selmi (George Washington) has just posted on SSRN his article, "Unions, Education, and Low-Wage Workers," which is part of the forthcoming University of Chicago Legal Forum Symposium issue (2009) (see here for Maria Ontiveros' contribution to the issue).  The abstract:

Low-wage workers have never had privileged access to desirable labor market opportunities but their position has significantly deteriorated over the last two decades, as union representation has decreased and the demand for higher skilled labor increased. This essay explores the future for low-wage workers and begins by defining what we mean by low-wage work, and also who low-wage workers are. I next explore the two most common advocated paths for improving the lives of low-wage workers: reviving unions and a human capital focus. I suggest that reviving unions, even in the context of the Employee Free Choice Act, offers at best a limited hope for improving the labor market opportunities for most low-wage workers. For a variety of complicated reasons, there is no basis for expecting a substantial resurgence of union representation, even if the law is changed to make union organizing more effective. Instead, I emphasize a human capital path, noting in particular, that far too many young individuals attend college without attaining any degree, and I discuss the important role community colleges can play in enhancing the human capital of low-wage workers. In the final part of the paper, I discuss educational reforms at the high school level that target at-risk populations, including a return to vocational education and the rise in charter schools, both of which might offer important opportunities for students to excel in school.

-JH

Secunda On The Gross Case

Paul Secunda (Marquette) has just published on the ACS Blog a piece called "Seeking A Practical Age Discrimination Standard," in which he analyzes the Supreme Court's upcoming Gross case (asking how to analyze non-Title VII mixed-motive claims).  Among Paul's insights:

Gross is a hard case to predict because there are at least two or three strong arguments cutting in different directions. One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

A better approach, however, is to point out that disparate treatment claims under the ADEA have been interpreted, on a procedural and substantive level, as substantially identical to claims brought under Title VII. Congress thought unnecessary to state what might have seem obvious to many; this new mixed-motive standard favoring plaintiffs applies to all employment discrimination statutes and there was no need to single the ADEA out. Public policy than provides added ammunition as it makes little sense to have different standards for similar employment discrimination cases, only diverging in the type of discrimination involved. It is confusing to employers and employees alike, and uniform standards in this regard will help the parties fashion their future conduct in this area.

Although the Supreme Court has not specifically addressed this question of the appropriate mixed motive standard in ADEA cases, the court has decided a number of ADEA cases in recent years which might provide some important clues. In short, relevant precedents may be read narrowly by the court to apply to only the “reasonable factors other than age” defense and disparate impact claims, and those parts of the ADEA that have been treated substantially similar to Title VII should not be impacted by these previous decisions.

Thus, because individual disparate treatment cases works substantially similar under Title VII and the ADEA, the Supreme Court in Gross should find that the CRA of 1991 standard applies to mixed-motive cases under the ADEA as well. This result is consistent with using other sources of authority when the relevant statutory language in the CRA of 1991 is ambiguous and provides a much more predictable and uniform playing field for parties to employment discrimination litigation in the future (who have enough interpretative difficulty without these mixed-motive matters being added to the mix, so to speak.)

I'll leave the more general issues of this case to people like Paul, but I will reiterate one aspect of this case that I don't think is close:  under Desert Palace, there is no direct evidence requirement, no matter whether the Court holds that the 1991 Amendments apply or not.

-JH

EFCA Happenings

Michael Fox and Politico discuss the ramifications of Senator Arlen Specter's recently announced opposition.  This will make it much more difficult to get the 60 votes required to get the bill past a Senate filibuster.  Today's Daily Labor Report says that neither unions nor management are backing down -- it's still full-scale war.  Finally, Alexander Leonard alerts us to an article in today's Wall Street Journal arguing that the card-check provision is unconstitutional on free speech grounds.  But I'm skeptical.  The EFCA doesn't restrict employer speech  -- the EFCA would just give employers an incentive to spread their anti-union message earlier in the certification process.

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Recently Published Scholarship

 
Articles

• David L. Gregory, Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act, 111 W. Virginia L. Rev. 395 (2009).
• Michael H. LeRoy (left), Do Courts Create Moral Hazard? When Judges Nullify Employer Liability in Arbitrations, 93 Minn. L. Rev. 998 (2009).

Student Scholarship

• Katie Klaeren (right), Moving Toward a More Protective Interpretation of National Origin Discrimination Under Title VII? Maldonado v. City of Altus, 77 U. Cin. L. Rev. 349 (2008).

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Dukes Rehearing

Maybe it's because things sat dormant for so long in the Dukes v. Wal-Mart case (largest ever class action--gender discrimination suit), so I wasn't paying close enough attention, but I missed that the 9th Circuit held oral argument on rehearing last Wednesday.

Here (Download Dukes) are all of the documents on rehearing, and here is a recording of the oral argument.

MM

British Parental Leave

Personneltoday.com, via PJH Law reports that the British Equalities and Human Rights Commission is proposing to decrease the discrepancy between maternity and paternity leave in an effort to close the gender pay gap.  Paternity leave would increase from 2 weeks to 8 week, and maternity leave would decrease from 9 months to 6 months, all at 90% salary.

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FedEx Says It'll Cancel Jet Orders . . .

. . . if Congress passes a law making it easier for workers to organize, says an article in last week's Wall Street Journal.

FedEx started out as an airline, so it falls under the Railway Labor Act.  The RLA requires company-wide employee votes on labor representation.  FedEx's rival UPS, however, started out as a trucking company, so it falls under the National Labor Relations Act.  The NLRA makes it easier for unions to organize workers because it unions can organize on a location-by-location basis.

Congress is considering a bill that would transfer jurisdiction of FedEx from the RLA to the NLRA.  That has the Teamsters, which has been trying to organize FedEx for years, salivating.

Now, no doubt trying to lock in the State of Washington's votes, FedEx is saying it will cancel 15 jets, worth about $6 billion, that it has an option to buy from Boeing.

Hat tip: Mark Grunewald.

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Recently Published Scholarship

1. Anne Layne-Farrar (photo above), An Empirical Assessment of the Employee Free Choice Act: The Economic Implications (556).
2. Orly Lobel & On Amir, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy (286).
3. Andrew P. Morriss, William T. Bogart, Andrew Dorchak, & Roger E. Meiners, 7 Myths About Green Jobs (238).
4. Richard A. Epstein, The Case Against the Employee Free Choice Act (212).
5. Marc Edelman,  Moving Past Collusion in Major League Baseball: Healing Old Wounds, and Preventing New Ones (118).
6. Isaac B. Rosenberg, Height Discrimination in Employment (117).
7. M. Todd Henderson, The Nanny Corporation and the Market for Paternalism (113).
8. Adam B. Cox, Immigration Law's Organizing Principles (110).
9. Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (107).
10. Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (104).

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Opposition to Request for Stay Filed with SCOTUS in Health Benefits Case

We've blogged about the 9th Circuit case of Golden Gate Restaurant Ass'n v. City an County of San Francisco--mostly Ed Zelinsky's analysis. Most recently, the 9th Circuit denied a petition for rehearing as we noted here, and the restaurant association applied for a stay in the Supreme Court, pending resolution of the certiorari process. Today, the defendants filed this joint response to that motion (courtesy of Scotusblog). Essentially, the defendants argue that the medium and large employers covered by the program have been complying with the healthcare spending requirements  for 15 months, and there is no sign that any business is being harmed by it. The application is before Justice Anthony M. Kennedy as Circuit Justice; it is up to him to decide the stay issue himself or to refer it to his colleagues for action.

MM

Waterstone on Disabled Veterans in the Workplace

Michael Waterstone (Loyola-LA) has just posted on SSRN his article, "Returning Veterans and Disability Law," which is going to be published in the Notre Dame Law Review.  The abstract:

Federal laws and policies as they relate to the employment of people disabilities are at war with themselves. Antidiscrimination law, primarily through the Americans with Disabilities Act, is premised on the empowering idea that people with disabilities can and should work once discriminatory societal barriers are removed. But antidiscrimination law does not work alone. There is a separate sphere of social welfare policies that provides more affirmative forms of assistance to people with disabilities. These older programs contain significant work disincentives and are often conditioned on detachment from the labor force. These divergent views of disability and employment have contributed to the low success rate in moving and keeping people with disabilities in the workforce.

The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework.

I've heard Michael present this paper and it's great, so check it out!

-JH

Ontiveros on the Civil Rights of Low-Wage Workers

Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming 2009 U. Chicago Legal Forum) Labor Union Coalition Challenges to Governmental Action: Defending the Civil Rights of Law-Wage Workers.  Here's the abstract:

The article examines international and domestic legal challenges filed by traditional labor unions, in coalition with others, against the government of the Unites States of America. The article argues that these lawsuits can help protect the civil rights of low-wage workers by creating a coherent legal theory defending the civil rights of low-wage workers and by creating an identifiable change agent to work on that defense. The lawsuits include those challenging governmental action with respect to immigrant workers, airport security screeners, social security no-match letters and Immigration and Customs Enforcement (ICE) workplace raids.

The article examines how the exclusion of low-wage workers from current constitutional and statutory protections has resulted in the lack of a coherent legal theory protecting their civil rights. It also discusses the lack of a national, collectively-based, institutional change agent devoted to protecting low-wage workers. Citing social movement theory, and applying it to lawyering for social change and labor union theory, the article argues that both are necessary to be effective. The article describes international lawsuits filed under the North American Agreement on Labor Cooperation and the International Labor Organization and describes how they are establishing a coherent legal theory based on a list of fundamental labor rights for North American workers and the concept of labor rights as human rights. On the domestic side, the article examines various constitutional claims brought against the government on behalf of low-wage workers and argues that the Thirteenth Amendment should be considered a useful umbrella for unifying these claims. Finally, the article describes how this type of advocacy is transforming the role of traditional labor unions.

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Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law

The Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law is now set.  It will be held at Seton Hall from September 25-26; abstracts are due by August 15.  Thanks to the organizers, Tim Glynn, Charlie Sullivan, and Rosa Alves.

This has been a great conference every year, so get those abstracts in.

-JH