Saturday, March 7, 2009
Not that you could've missed the news, but the February employment figures (651,000 jobs lost, which is the second month of a slight decline in this figure) have bumped the unemployment rate to 8.1%. The Washington Post has published an interesting break-down of some of the employment numbers, including the following:
NEW RECORD-HIGHS AT ALL EDUCATION LEVELS
4.1 percent: Unemployment rate for college graduates
8.3 percent: Unemployment rate for high school graduates
12.6 percent: Unemployment rate for those with no high school diploma
14.8 percent: Unemployment rate including involuntary part-time workers and those who hadn't looked in 12 months, the highest on records dating to 1994
COMPARING FEBRUARY WITH PAST DOWNTURNS
8.1 percent: Unemployment rate in February 2009
10.8 percent: Unemployment rate in December 1982, one month after steep recession ended
December 1983: Last time the unemployment rate was higher than the current level
60.3 percent: Portion of the total population that had jobs in February
February 1986: Last time the portion was this low
FEBRUARY UNEMPLOYMENT RATE BY GROUP
8.1 percent: Adult men
6.7 percent: Adult women
10.3 percent: Female heads of households
6.9 percent: Asians
7.3 percent: Whites
10.9 percent: Hispanics
13.4 percent: Blacks
21.6 percent: Teenagers
While we're on the topic of layoffs, the New York Times has an article on the fact that many current layoffs, even if a significant part of an employer's workforce, are escaping WARN's notice requirements. The issue is particularly ironic now, as some employers publicize job-cutting measures to satisfy investors, while others seem to be making cuts in ways that garner little attention and don't trigger WARN:
Big companies . . . routinely carry out scattered layoffs that are small enough to stay under the radar, contributing to an unemployment rate that keeps climbing, as Friday’s monthly jobs report is likely to show.
I.B.M. is one such company. It reported surprisingly strong quarterly profits in January, and in an e-mail message to employees, Samuel J. Palmisano, the chief executive, said that while other companies were cutting back, his would not. “Most importantly, we will invest in our people,” he wrote. But the next day, more than 1,400 employees in I.B.M.’s sales and distribution division in the United States and Canada were told their jobs would be eliminated in a month. More cuts followed, and over all, I.B.M. has told about 4,600 North American employees in recent weeks that their jobs are vanishing. . . .
These unannounced cuts, labor experts say, raise issues of disclosure and the treatment of workers. They argue that the federal law requiring warning of certain kinds of layoffs should be overhauled to cover smaller job cuts. That would give people more time to seek new jobs, career counseling and retraining. “The twin goals are transparency and decency,” said Harley Shaiken, a labor economist at the University of California, Berkeley. “The issue becomes all the more pressing in this downward economic spiral.”
The notification law, known as the WARN Act, is a legacy of an era when the economy was more dependent on manufacturers and legislators were concerned about blue-collar workers being locked out of their factory. That kind of shutdown is hard to hide, while white-collar layoffs spread across many locations are not. The WARN Act requires 60 days’ notice, but the events that require notification are site-specific — a plant closing, a layoff of 500 or more people at one location, or a cut of at least one-third of the work force at a site. . . .
To strengthen the federal layoff-warning law, labor experts make a few suggestions. They include adopting the California threshold of 50 people let go at one site, or a national standard, requiring 60 days’ notice if a company lays off at least 1,000 workers nationally or at least 10 percent of its work force. Some labor experts would also like to see a requirement for large corporations to report employment country by country annually.
As the article notes, what's going on in many instances are the type of layoffs that WARN didn't contemplate. Rather than the traditional plant closing, we're now seeing more widespread hemorrhaging of jobs--including more white-collar ones--in locations that are still in operation.
- Orly Lobel (left) & On Amir (right), Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy (216).
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (148).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (108).
- Steven L. Schwarcz, Conflicts and Financial Collapse: The Problem of Secondary-Management Agency Costs (98).
- Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (94).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (93).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (87).
- Nicholas Barr & Peter A. Diamond, Reforming Pensions (90).
- Elizabeth M. Glazer & Zachary A. Kramer, Trans Fat (88).
- Isaac B. Rosenberg, Height Discrimination in Employment (86).
Friday, March 6, 2009
Students from Race to the Bottom and the Student Employment Law Association at the University of Denver Sturm College of Law, and faculty from the College of Law and the Daniels College of Business, will be providing daily coverage of the suit brought by Ward Churchill (photo at left), a former tenured faculty member in the Department of Ethnic Studies at the University of Colorado, against the University of Colorado. The trial begins on March 9 in the Denver District Court.
Churchill came to the public forefront when reports surfaced about an essay he wrote that contained critical comments about the US concerning the 9/11 attacks on the trade towers in NY (the comments are posted on Wikipedia). Churchill was ultimately dismissed from the University of Colorado. He has brought suit alleging essentially that he was dismissed for exercising his first amendment rights because of the criticisms in the 9/11 essay. The University of Colorado, on the other hand, is asserting that Churchill was dismissed because his conduct fell "below minimum standards of professional integrity."
Students and faculty will attend every session of the trial. They will post after each session, assessing the progress of the trial. In addition, others will be asked to participate and write occasional commentary.
The trial is not a corporate governance matter so the posts will not appear on the main page of The Race to the Bottom. Instead, there is a special link to Churchill v. University of Colorado accessible from the main page of The Race to the Bottom.
Primary materials, including the complaint and the answer, are posted on the DU Corporate Governance web site.
Earlier this week, Ray Fisman wrote an interesting column at Slate.com about testing in the employment context. He explored the tension between the fact that while at least some employment tests may be racially biased, they result in less bias than actions by individual decisionmakers.
From the column:
[A] recent study published in the Quarterly Journal of Economics, by economists David Autor of MIT and David Scarborough of Black Hills State University, questions whether these oft-vilified tests are necessarily bad for minorities at all. (Scarborough also works for Kronos, a company that sells job testing products.) They argue that the tests—while perhaps biased—may nevertheless serve as a check on the judgment and prejudices of all-too-human interviewers. In fact, the authors find that when a large retailer started using a job screening test in 1999, the fraction of blacks and Hispanics hired didn't change, while the quality of hires of all races increased as a result of testing.
The column explains why it is that testing might be problematic--both through cultural bias in the tests and when they are not sufficiently job related (the example he gives is a math exam for all mail couriers). And it describes the comparison the authors did between the effects of using a test and the effects of leaving the decision to individuals. "Autor and Scarborough's insight is that adding a test—even a racially biased one—will only aggravate the problem of discrimination if it is more biased than the average HR person. A test that favors white applicants may even reduce discrimination if its bias is less extreme than human prejudice."
And Fisman adds this thought as well:
The results of the study don't let test-makers off the hook—they still need to strive to create questions that give applicants of comparable ability equal footing. But we also shouldn't "shoot the messenger" if a test reveals uncomfortable disparities among races. Tests are used for many high-stakes decisions in America—the SAT for college admission, the Armed Forces Qualifying Test for the military, Police Entrance Exams. The fact that minorities perform poorly on these tests shouldn't be shoved under the rug—assessing the extent of racial inequality is the first step to understanding and remedying the underlying problems.
Very important points.
Hat tips: Paul Secunda and Randy Enochs
According to the Employment Law Group's Whistleblower Law Blog, the DOL issued an important decision in favor of a Sarbanes-Oxley whistleblower last week. The decision marks the first time that the DOL's Administrative Review Board affirmed an ALJ decision in favor of a SOX plaintiff.
The case was Kalkunte v. DVI Financial Servs., Inc. (Download kalkunte_final_decision.pdf), and in it, the Board held that a privately-held company acting as a contractor, subcontractor, or agent of a publicly traded company can be held liable for violation of the whistleblower provisions of SOX. The Board held that a company cannot escape liability for violating the whistleblower provisions of SOX merely because it is not registered under the Securities and Exchange Act or required to file reports under it. The employee in this case was employed by a publicly held company, but claimed that she was retaliated against for reporting a violation of the securities laws by that publicly held company but also by a privately held company. The ALJ found both liable and awarded the plaintiff lost wages and compensatory damages. The Board upheld that decision.
In a follow-up to Jeff's post early this week about economists debating the EFCA, it appears that the letter to Congress in favor of passage referred to in that article was made public through a full page ad in the Washington Post the week before.
Here is the text of that letter:
Although its collapse has dominated recent media coverage, the financial sector is not the only segment of the U.S. economy running into serious trouble. The institutions that govern the labor market have also failed, producing the unusual and unhealthy situation in which hourly compensation for American workers has stagnated even as their productivity soared.
Indeed, from 2000 to 2007, the income of the median working-age household fell by $2,000- an unprecedented decline. In that time, virtually all of the nation’s economic growth went to a small number of wealthy Americans. An important reason for the shift from broadly-shared prosperity to growing inequality is the erosion of workers’ ability to form unions and bargain collectively.
A natural response of workers unable to improve their economic situation is to form unions to negotiate a fair share of the economy, and that desire is borne out by recent surveys. Millions of American workers – more than half of non-managers – have said they want a union at their work place. Yet only 7.5% of private sector workers are now represented by a union. And in all of 2007, fewer than 60,000 workers won union status through government-sanctioned elections. What explains this disconnect?
The problem is that the election process overseen by the National Labor Relations Board has become drawn out and acrimonious, with management campaigning fiercely to deter unionization, sometimes to the extent of violating the labor law. Union sympathizers are routinely threatened or even fired, and they have little effective recourse under the law. Even when workers overcome this pressure and vote for a union, they are unable to obtain contracts one-third of the time due to management resistance.
To remedy this situation, the Congress is considering the Employee Free Choice Act. This act would accomplish three things: It would give workers the choice of using majority sign-up-- a simple, established procedure in which workers sign cards to indicate their support for a union – or staging an NLRB election; it triples damages for employers who fire union supporters or break other labor laws; and it creates a process to ensure that newly unionized employees have a fair shot at obtaining a first contract by calling for arbitration after 120 days of unsuccessful bargaining.
The Employee Free Choice Act will better reflect worker desires than the current “war over representation.” The Act will also lower the level of acrimony and distrust that often accompanies union elections in our current system.
A rising tide lifts all boats only when labor and management bargain on relatively equal terms. In recent decades, most bargaining power has resided with management. The current recession will further weaken the ability of workers to bargain individually. More than ever, workers will need to act together.
The Employee Free Choice Act is not a panacea, but it would restore some balance to our labor markets. As economists, we believe this is a critically important step in rebuilding our economy and strengthening our democracy by enhancing the voice of working people in the workplace.
The endorsers included prominent economists from many prestigious institutions. Click on the link to the ad above for the list, or click here for the list plus very enlightening commentary at the Economist's View.
Hat tip: Patrick S. O'Donnell
Twenty-five years ago today, UK miners struck en masse after Margaret Thatcher's government announced the closure of a South Yorkshire mine. Labour correctly assumed that this would be the first of many mine closures in the heavily subsidized industry. At the strike's peak, 90,000 miners put down their tools, but the government had stockpiled coal and a year later, the strike was broken.
The miners' strike was a pivotal event in UK political and labor history, much as PATCO was in the U.S. -- except that the miners' strike was broader, much more violent, and had the potential to bring down the government.
Emerging Technology & Employee Privacy Symposium
- William A. Herbert, Amelia K. Tuminaro, The Impact of Emerging Technologies in the Workplace: Who's Watching the Man (Who's Watching Me)?, p. 355.
- Robert Sprague, Rethinking Information Privacy in an Age of Online Transparency, p. 395.
- Blake R. Bertagna, The Internet--Disability or Distractions? An Analysis of Whether 'Internet Addiction' can Qualify as a Disability Under the Americans with Disabilities Act, p. 419.
- Joseph J. Lazzarotti, The Emergence of State Data Privacy and Security Laws Affecting Employers, p. 483.
- Christine E. Howard, Invasion of Privacy Liability in the Electronic Workplace: A Lawyer's Perspective, p. 511.
- Alexandra Fiore & Matthew Weinick, Undignified in Defeat: An Analysis of the Stagnation and Demise of Proposed Legislation Limiting Video Surveillance in the Workplace and Suggestions for Change, p. 525.
- Lauren Kugielska & Melissa Linker, Balancing the Red Cross: An Examination of Hospital Malpractice and the Nursing Shortage, p. 563.
- Desireè Busching & Simon Kapochunas, Timothy's Law: Introducing New York to Mental Health Parity, p. 601.
Thursday, March 5, 2009
The EFCA spill-over effect has begun . . . . Two pieces are out today trying to quantify how often employees are unlawfully terminated during a union organizing campaign, which is tied to pro-EFCA arguments that the current NLRA election process is broken. One study, by John Schmitt and Ben Zipperer (Center for Economic and Policy Research), is entitled "Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007" and uses some new models to update Paul Weiler's estimates of campaign-related terminations. Their conclusion:
By 2007, pro-union workers involved in union election campaigns faced about a 1.8 percent chance of being illegally fired during the course of the campaign. If we assume that employers target union organizers and activists, and that union organizers and activists make up about 10 percent of pro-union workers, our estimates suggest that almost one-in-five union organizers or activists can expect to be fired as a result of their activities in a union election campaign. Since 2000, illegal firings have marred over one-in-four NLRB-sponsored union elections, reaching 30 percent of elections in 2007.
In response, Justin Wilson (Center for Union Facts) claims that this figure is overstated because of faulty assumptions and inadequate data. In "An Analysis of Current NLRB Data on Unlawful Terminations
During Union Organization Campaigns, 2007 to 2008," Wilson concludes that "a maximum of 3.75
percent of union organization campaigns included an unlawful termination."
My conclusion? We need better data and for Congress to stop preventing the NLRB from conducting economic studies.
Hat Tip: Dennis Walsh
Deborah Widiss, currently a Visiting Associate Professor at Brooklyn, is headed to Indiana-Bloomington for a tenure-track position this fall.
Deborah's research interests include employment law, the legislative process, and the significance of gender and gender stereotypes in the development of law and government policy. Her recent publications include Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy in the Florida State University Law Review (2008) and a co-written article, Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, which appeared in the Harvard Journal of Law and Gender (2007) and which received a Dukeminier Award from the Williams Institute at UCLA Law School (awarded annually to the best law review articles addressing sexual orientation or gender identity). Her most recent article is Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides, which received lots of attention at AALS this spring.
Before beginning to teach, Professor Widiss was a senior staff attorney for Legal Momentum (formerly NOW Legal Defense and Education Fund), and a staff attorney at the Campaign for Fiscal Equity and the Lawyers Alliance for New York. After law school, she clerked for Hon. Allyne R. Ross of the U.S. District Court for the Eastern District of New York.
Congrats to Indiana for its fine catch!
Jessica Roberts (Columbia fellow) has just posted on SSRN her article Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act. Here's the abstract:
Later this year, the Genetic Information Nondiscrimination Act (GINA) of 2008 goes into effect. GINA protects individuals against discrimination by insurance companies and employers on the basis of genetic information. GINA is not only the first civil rights law of the new millennium, it is also the first preemptive antidiscrimination statute in American history. Traditionally Congress has passed retrospective antidiscrimination legislation, reacting to existing discriminatory regimes. However, little evidence indicates that genetic information discrimination is taking place on a significant scale. Thus, unlike the laws of the twentieth century, GINA attempts to eliminate a new brand of discrimination before it takes hold. This Article provides a detailed look at this unprecedented new statute, beginning with its initial introduction in 1995. Next, the Article examines the justifications for passing preemptive genetic information discrimination legislation, concluding that Congress had twin objectives: a research justification and an antidiscrimination justification. Lastly, the Article explores the implications of passing antidiscrimination legislation absent a history of discrimination, concluding that GINA's preemptive nature may be its greatest attribute as well as its deepest flaw.
Ariana Levinson (Louisville-Brandeis) writes to tell us that registration is now available for the 26th Annual Carl A. Warns, Jr. Labor and Employment Law Institute. The Institute will be held June 18-19 in Louisville, and the theme is Labor and Employment Law for a New Economic and Political Era. Cynthia Estlund will give the Carl A. Warns, Jr. Lecture. Other confirmed speakers include: David Leightty, Ken Dau-Schmidt, Mark Rothstein, Robert Hillman, James Fogle, Tom Williams, Ann McGinley, Marty Malin, Vickie Lipnic, Barry Kearny, Bonnie Glantz Fatell, Paul Friedman, Carolyn Wheeler, and Charles Powell.
- William B. Gould IV (left), The Employee Free Choice Act of 2009, Labor Law Reform, and What Can Be Done About the Broken System of Labor-Management Relations Law in the United States, 43 U.S.F. L. Rev. 291 (2008).
- Howard F. Chang (second), Guest Workers and Justice in a Second-Best World, 34 U. Dayton L. Rev. 3 (2008).
- Stephen F. Befort (third) & Alison L. Olig (fourth), Within the Grasp of the Cat's Paw: Delineating the Scope of Subordinate Bias Liability Under Federal Antidiscrimination Statutes, 60 S.C. L. Rev. 383 (2008).
- John E. Matejkovic (fifth)& Margaret E. Matejkovic (sixth), What is Reasonable Accommodation Under the ADA?: Not an Easy Answer; Rather a Plethora of Questions, 28 Miss. Coll. L. Rev. 67 (2008-09).
- Taylor Simpson-Wood (seventh), Amierican Girl Place and Actors' Equity Association: A Tale of Tenacious Thespians and How Their Legitimate Right to Join the Union Received Reluctant, But Just, Recognition, 28 Miss. Coll. L. Rev. 97 (2008-09).
- Brian C. Gilmore, ERISA's Full and Fair Access to Appeal-Level Documents During the Course of an Administrative Appeal, 43 U.S.F. L. Rev. 383 (2008).
- Andrew Lee Younkins (bottom right), Judicial Review Standards for Interest Arbitration Awards Under the Employee Free Choice Act, 43 U.S.F. L. Rev. 447 (2008).
Wednesday, March 4, 2009
David Yamada at the Minding the Workplace Blog has informed us about two upcoming conferences related to occupational stress and workplace bullying:
On Nov. 5-8, several organizations are hosting "Work, Stress, and Health 2009: Global Concerns and Approaches -- 8th International Conference on Occupational Stress and Health" in San Juan Puerto Rico.
On June 2-4, 2010, the conference "Transforming Research: Evidence and Practice -- 7th International Conference on Workplace Bullying and Harassment" will be held in Cardiff, Wales.
Check out David's blog for more details.
The battle between the SEIU and the NUHW in California is heating up (see here for most recent post). Last week, the splinter NUHW union claimed that it has signatures from over half of Kaiser Permanente's 50,000 workers stating that they want to be represented by the NUHW, not the SEIU. The NUHW is asking Kaiser to withdraw recognition from the SEIU and agree to voluntary recognize the NUHW based on a card check. Not surprisingly, the SEIU is arguing that the petitions aren't valid.
Stay tuned while the fun continues.
Hat Tip: Dennis Walsh
Word is that the Employee Free Choice Act will be introduced in the House on Monday. The economy may dull the fight somewhat, but I still expect this one to get bloody. At the least, I may have fewer people ask me if labor law is still relevant.
Stay tuned . . . .
Hat Tip: Randy Enochs & Paul Secunda
Tuesday, March 3, 2009
Melissa Hart and Paul Secunda have just posted on SSRN their article, "A Matter of Context: Social Framework Evidence in Employment Discrimination Class Action." The article is a critical response to an earlier article by three professor who argued that social framework testimony should not be allowed at trial. The abstract:
In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decisionmaking and examine the policies and practices operating in a challenged workplace to identify those that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social framework experts, and some courts have agreed that the testimony should not be allowed. Because of the importance of this testimony to ferreting out large-scale discrimination in the workplace, the stakes in the debate over its admissibility are considerable.
The debate has moved recently from the courtroom to the pages of law reviews. In an essay published last fall, three academics argued that social framework testimony as it is commonly accepted by district courts should be categorically disallowed. The arguments for the exclusion of social framework testimony as it is currently presented in employment discrimination class action litigation are fundamentally flawed. A blanket exclusion of this evidence is inconsistent with the Federal Rules of Evidence and Supreme Court precedent on the district courts' responsibility for assessing the admissibility of expert testimony more generally. This article puts the debate over social framework expert testimony in context, explaining what the testimony is and the role it has played in employment discrimination litigation, with a particular focus on the way the testimony has been offered in class action suits like Dukes v. Wal-Mart. It explains how the normal rules of evidence law should apply to social framework expert testimony, and under the flexible and permissive standards of the Federal Rules of Evidence, framework testimony offered by a qualified expert should be admissible in many employment class actions. The argument that this kind of evidence should always be excluded is driven as much by a particular view of employment discrimination law as by the governing evidentiary rules. Ultimately, the arguments for blanket exclusion of social framework testimony in these cases can best be understood as part of a political debate and a litigation strategy.
I heard Melissa and Paul present their work earlier this year and it was quite compelling. The article also lays out the basic issue in detail, which is helpful for people like me who are less familiar with the issue.
Peter Schmidt has a piece in the Chronicle of Higher Education that will be of interest to many readers. Entitled "Professors' Freedoms Under Attack From the Courts," it looks at academic free speech claims and their frequent lack of success in the courts--primarily thanks to Garcetti. Schmidt points out that many courts refuse to take into account the tradition of faculty academic freedom and shared governance when analyzing free speech claims and noted that the AAUP has been very active of late trying to fight this trend. The AAUP panel heading up these efforts include Robert O'Neal (UVA's Thomas Jefferson Center), Judith Areen (Georgetown), Robert Post (Yale), and William Van Alstyne (William and Mary).
In addition to a couple of horror stories, Schmidt does a good job describing the current battles over these issues.
Hat Tip: Ariana Levinson