Workplace Prof Blog

Costco, Starbucks, Whole Foods Propose Alternative to EFCA

Dennis Nolan writes to tell us about this Washington Post article reporting that Costco, Starbucks, Whole Foods are proposing a more management-friendly version of the EFCA.  Here's what they suggest:

Their proposal would maintain management's right to demand a secret ballot election, and would leave out binding arbitration. The proposal would keep the third main element of the "card-check" bill -- toughening the penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining. But it would also toughen penalties for union violations, and it would make it easier for businesses to call elections to try to decertify a union.

To address labor's concern that businesses intimidate workers before elections, it would set a fixed period in which an election must be held, limiting the delays that give employers time to exert pressure. The proposal does not specify what the time period should be.

The proposal would also provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break in the company cafeteria just as management can.

rb

2009 Piper Lecture at Chicago-Kent

Marty Malin writes to tell us:

The 31st Annual Kenneth M. Piper Lecture will take place on Tuesday, March 24 at 11:30 a.m. Central time at Chicago-Kent College of Law.  Professor Richard Freeman, Herbert Ascherman Professor of Economics at Harvard University will speak on, “Return of the Public: Why Market Fundamentalism Failed and What Labor Can Do About It to Save the World.”  Commentary will be provided by Kimberly Didier, Executive Director, Workforce Innovation and Regional Economic Development, Iowa Association of Business & Industry, and Donald Kennedy, Director, High Performance Work Organization Department, International Association of Machinists.  For more information, click here.

The program if free and open to the public.  If you are in Chicago on Tuesday, please join us.  If not, please join us on the web as the program will be webcast live. 

Richard Freeman is one of the leading labor economists in the world.  Kim Didier led the effort of the city of Newtown, Iowa to cope with the loss of 1900 jobs when Maytag left.  Don Kennedy has led the IAM’s labor-management cooperation programs with numerous employers including the highly acclaimed efforts with Harley-Davidson.  The program is very timely in light of the free fall of the U.S. economy.  I hope you can join us.

rb

Roberts's GINA Article to Vandy

Congratulations to Jessica Roberts (Yale fellow & future LEL prof) whose article Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act has been accepted for publication in Vanderbilt Law Review.  We wrote about the article two weeks ago here.  Look for a March 2010 publication date.  Congrats, Jessica!

rb

Fourth Circuit Reverses on Email Snooping Case

Bonnie Van Alstyne sued her employer for sexual harassment, and during a deposition related to the case, the employer's owner produced several emails from Van Alstyne's personal email account.  Turns out, the owner had broken into her personal account and had accessed the account "at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong."

Van Alstyne then sued under the Stored Communications Act part of the Electronic Communications Privacy Act, and obtained a jury of more than $400,000.  The verdict included statutory damages,punitive damages, and attorneys' fees.  The Fourth Circuit, however, reversed, holding that statutory damages are not available under the statute absent a showing of actual damages (Van Alstyne had neither pled nor proven actual damages).  The court, however, left open the possibility that Van Alstyne could amend her complaint to plead actual damages.

The case is Van Alstyne v. Electronic Scriptorium, Ltd., No. 07-1892 (4th Cir. March 18, 2009).  Hat tip: Jonathan Harkavy.

rb

NLRB Finds ULPs Against Saigon Grill

We reported earlier on the many labor troubles at Saigon Grill--especially a wage and hour suit.  Part of those troubles involved an NLRB ALJ's findings of unfair labor practices.  The NLRB has recently adopted the ALJ's findings of ULPs and overturned the ALJ's recommendation to dismiss three other ULP complaints (it seems that the ALJ read the complaints allegation that the restaurant made threats promises and interrogations because of union and/or protected and concerted activities as just saying because of union activities).

Among the actions that resulted in ULPs was the restaurant's promise to raise wages in exchange for dropping a wage and hour suit.   The Board also remanded to the ALJ to make credibility determinations needed to answer whether there were interrogations and threats of discharge

This case isn't over, so stay tuned . . . .

Hat Tip:  Dennis Walsh

Lonely ERISA

 Today's Courtoon.

rb
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.

Gender Sameness, Gender Differences

Miranda McGowan (San Diego) has just posted on SSRN her article Engendered Differences.  Here's the abstract:

This article presents evidence that men and women have very similar cognitive abilities, personality traits, and interests; immutable sex differences on these fronts do not limit an individual's potential. Ironically, however, this conclusion suggests that achieving substantive sex equality is harder than we have before imagined. We have created difference and inequality despite our sameness, partly because of our irresistible cognitive urge to categorize people on the basis of sex and the systematic errors in judgments that result from that categorization. The research presented in this article provides the basis for correcting these false stories that prop up social structures that lead men and women to have such dissimilar lives, and women to have worse ones. One important implication of this research is that the antidiscrimination principle applies to sex categories with greater force and has greater scope than is commonly thought. Public and private discrimination on the basis of sex is wrong because, for types of things the law cares about (such as work or childrearing), men and women have the same capabilities and interests. Sex equality, however, will require far more than a greater commitment to antidiscrimination. Both men and women will have to make different choices about the kinds of work to pursue and how to divide up the work of caring for children and home between them. They will not do so without significant incentives from the government, and sex neutral policies will fail to change these ingrained patterns.

rb

Cunningham on A.I.G. Bonuses

In today's New York Times, Lawrence Cunningham (GW) has an op-ed on the recent furor over A.I.G. bonuses.  In his piece, Cunningham discusses the extent to which A.I.G. is legally bound (or not) to pay bonuses to its executives.  His thoughts include:

Subpoenas issued by Andrew Cuomo, the New York attorney general, have put much of this vital information into the hands of government officials. Those officials would do well to compare the provisions in these contracts to the job performance of the employees who received bonuses. If employees did not meet stated performance goals, they would be in breach of contract and A.I.G. would not have to pay.

Likewise, A.I.G. has stated that these agreements expressly state that if employees are terminated for cause, they are not entitled to any bonus payments. It follows then that the contracts may preserve the company’s power to deny bonuses to employees who could be terminated for cause but have not yet been.

Apart from specific contractual terms, there are other reasons A.I.G. might rescind these bonuses. They include the nondisclosure of important material information — for instance, if an employee failed to be absolutely candid about the size and risk of trading positions taken on the company’s behalf.

Findings of fraud on the part of an employee would certainly also excuse A.I.G.’s duty to pay. This isn’t to say that any A.I.G. employee engaged in such activity. But given the scale of problems that A.I.G. has confronted, and credible allegations of serious misconduct within the organization, it’s worth investigating.

There is also at least some chance, given A.I.G.’s functional insolvency and the government takeover, that these agreements may be rescinded either on the basis of impracticability or by virtue of unforeseeable and uncontrollable circumstances. A credible fact supporting both excuses is precisely the company’s huge loss last quarter. Courts excuse contract duties when governmental action essentially destroys the original purpose of a contract — and the taxpayers’ 80 percent stake in A.I.G. is a more extreme sort of governmental action than usually appears in such cases.

A final potential legal basis for rescinding these payments is fraudulent conveyance law. This generally limits the right of a financially troubled company to transfer property to favored claimants on sweetheart terms when doing so would hurt the interests of other claimants, like lenders and shareholders — in this case, perhaps even taxpayers. Again, this is not to say that these payments violate this doctrine, but it is a relevant question for the government to probe.

As Cunningham notes, it's unclear at this point whether any of these options is available, but they are certainly worth exploring.  Based on my limited knowledge of A.I.G. it seems that executives in the hedge fund division that threatened what appeared to be an otherwise solid company (and the people who put the entire company at risk based on this single division's performance) are those who are most vulnerable to these strategies.  Just hours ago, A.I.G.'s CEO asked executives to give back half of their bonuses, but I doubt that will do anything to reverse the uproar.

-JH

Hofstra LELJ's ERISA Symposium

BNA's Pension & Benefits Daily (subscription required) has a story on an ERISA Symposium sponsored by the Hofstra Labor and Employment Law Journal.  Topics include whether ERISA preempts state "pay or play" health plan laws, problems with ERISA's remedial scheme, insections of ERISA preemption and remedies, and possible reform measures.

Check out the Hofstra website for a program list, which was made up of some of the top experts in this area, including blogger emeritus, Paul Secunda.

-JH

Law Prof. Amicus Brief in 7th Circuit ERISA Case

This is a cross-post from Marquette's Law Faculty blog by Paul Secunda:

Today, as part of a group of law professors around the country with interests in the mutual funds and employee benefits area, I helped to draft and signed on to an amicus brief which asked for the Seventh Circuit Court of Appeals to grant rehearing en banc in the ERISA case of Hecker v. Deere & Company.  The case concerns an issue of tremendous importance for American workers’ retirements: the appropriate scope of a fiduciary duty under ERISA in the context of personal savings and mutual fund fees.

In Hecker, a 7th Circuit panel affirmed the decision of the district court of the Western District of Wisconsin, which found a group of employee-plaintiffs did not state a claim for relief under ERISA when their employer, Deere, allegedly did not provide a sufficient menu of mutual fund options for their 401(k) retirement plan accounts.  Although the brief argued in part that the panel inappropriately adopted a remarkably narrow interpretation of fiduciary duty that relied crucially upon an assumption that the underlying market for mutual funds is vibrant and competitive, my part of the brief involved the proper fiduciary standard for employers who run 401(k) accounts under so-called 404(c) plans.

More specifically, we argued that the panel’s decision in Hecker drastically overstated the proper scope of the § 404(c) safe harbor for fiduciaries of 401(k) plans under ERISA and thereby threatens to undermine the ability of tens of millions of Americans to save effectively for their retirements.    This is because ERISA requires “care, skill, prudence, and diligence” on the part of a fiduciary to select a suitable menu of investments, not to select a small number of expensive options or to make essentially no selection at all.

And although it is true that ERISA § 404(c) eliminates fiduciary responsibilities for plan administrators to the extent participants direct how their pension fund assets are invested, it does not touch the obligation of fiduciaries to prudently select and monitor the menu of possible plan investments.  Yet, the Hecker panel concluded on mere pleadings that, “even if § [404(c)] does not always shield a fiduciary from an imprudent selection of funds under every circumstance that can be imagined, it does protect a fiduciary that satisfies the criteria of § 1104(c) and includes a sufficient range of options so that the participants have control over the risk of loss.”  This conclusion misstates ERISA law, as interpreted by the DOL, and insulates ERISA fiduciaries from liability for assembling an imprudent menu of investment choices for employees in the first instance.  We thus urge the panel to grant  en banc rehearing and deny the defendants’ motion to dismiss.

MM

SSRN's Most Downloaded Labor and Employment Law Faculty

I realize that this list is controversial (see prior posts and comments here and here), but because SSRN downloads are one measure of publishing success, some information on the numbers can tell us who is using SSRN to post work, and who is being read by those who download from SSRN. It's some indication of who is doing some pretty interesting work.

These rankings are taken from the SSRN Top 1,500 Law Authors list, updated of March 14, 2009, and the criteria for selection were inclusion in that list, along with current teaching and writing in the field of Labor and Employment Law. Let me know in the comments if we missed anybody.

Labor & Employment Faculty Rankings by SSRN Downloads
	Total New Downloads		All-Time Downloads
Labor Faculty (School)	L&E Rank	Overall Rank	L&E Rank	Overall Rank
Levit, Nancy (UMKC)	1	73	4	298
Long, Alex (Tennesee)	2	99	9	417
Bales, Richard (N. Ky. Chase)	3	127	1	148
Secunda, Paul (Marquette)	4	158	11	478
Stone, Katherine (UCLA)	5	271	6	359
Lobel, Orly (San Diego)	6	317	7	381
Yamada, David (Suffolk)	7	384	30	1332
Dau-Schmidt, Kenneth (Indy Bloomington)	8	430	8	400
LeRoy, Michael (Illinois)	9	438	17	763
Jolls, Christine (Yale)	10	478	2	194
Thomas, Suja (Cincinnati)	11	555	10	432
Dannin, Ellen (Penn State)	12	559	15	655
Rubinstein, Mitchell (Adjunct, NYLS)	13	648	22	1099
Bodie, Matthew (St. Louis)	14	668	17	747
Zelinsky, Edward (Cardozo)	15	780	14	621
Gely, Rafael (Missouri)	16	794	3	285
Gordon, Jennifer (Fordham)	17	902	18	1022
Schwab, Stewart (Cornell)	18	909	5	300
Forman, Jonathan (Oklahoma)	19	924	28	1312
Hutchison, Harry (George Mason)	20	948	23	1116
Cherry, Miriam (McGeorge)	21	981	13	581
Doorey, David (York University)	22	987	27	1310
Selmi, Michael (George Washington)	23	1039	12	547
Hirsch, Jeffrey  (Tennessee)	24	1133	24	1145
Moss, Scott (Colorado)	25	1137	19	1047
Wooten, James (SUNY Buffalo)	26	1169	26	1255
Bagenstos, Samuel (Wash. U., Visiting UCLA)	27	1184	34	2052
Craver, Charles B.(George Washington)	28	1212	31	1356
Kotkin, Minna (Brooklyn)	29	1238	33	1787
Finkin, Matthew (Illinois)	30	1314	21	1076
Lofaso, Anne (West Virginia)	31	1326	32	1653
Davidov, Guy (Hebrew Univ., Jerusalem)	32	1359	25	1225
Fisk, Catherine (U.C. Irvine)	33	1391	20	1049
Estreicher, Samuel (NYU)	34	1420	36	2555
Emens, Elizabeth (Columbia)	35	1451	16	742
Befort, Stephen (Minnesota)	36	1467	29	1313
Brake, Deborah  (Pittsburgh)	37	1467	35	2335

MM

Drahozal Testifies on Arbitration

Chris Drahozal (Kansas) testified yesterday before the U.S. Senate Republican Conference regarding a study he helped conduct on consumer arbitrations.  He spoke during a hearing on tort reform at the Dirksen Senate Office Building in Washington, D.C.

Drahozal served as chair of the Searle Civil Justice Institute Consumer Arbitration Task Force, which released a report last week detailing its study of consumer arbitrations administered by the American Arbitration Association.  The Searle study found that measures to protect consumers’ rights are routinely enforced in American Arbitration Association consumer arbitrations and that outcomes are not biased in favor of businesses that arbitrate repeatedly.

Drahozal’s testimony is timely given pending federal legislation to ban pre-dispute arbitration agreements in consumer and employment contracts. I think there's a reasonable chance that as consumer arbitration goes, so too will go employment arbitration.

rb

IP Law Meets Labor/Employment Law

From Retirement Plan Blog:

Lincoln National Life Insurance Company, part of Ft. Wayne, Indiana-based Lincoln Financial Group, won a  $13.1 million jury verdict in a variable annuity patent infringement case against three Aegon USA companies, Transamerica Life Insurance Co., Transamerica Financial Life Insurance Co., and Western Reserve Life Assurance Co. of Ohio.

The patent claim at issue related not to the variable annuity itself but to a computerized method for administering variable annuity products that combine guaranteed minimum payment features with systematic withdrawal programs.

The patent also includes data processing methods used to administer variable annuities in the payout phase and withdrawals from mutual funds, particularly systematic withdrawals from funds.

rb

Perez To Head Civil Rights Division

On Friday, the White House announced that it was nominating Tom Perez as the head of the Department of Justice's Civil Rights Division.  According to the announcement:

Tom Perez is a nationally recognized civil rights lawyer and consumer advocate who currently serves as the Secretary of Maryland’s Department of Labor, Licensing and Regulation (DLLR). Under Perez’s leadership, DLLR protects and empowers working Americans.  The Department enforces workplace safety laws that provide critical safeguards to workers and communities; enforces wage and hour, and other worker protection laws that ensure wage security; protects consumers through the enforcement of a wide range of consumer rights laws, including the mortgage setting; and collaborates with businesses and workers to address critical workforce development needs and build a world-class workforce.  Perez has extensive experience in foreclosure prevention and was a principal architect of a sweeping package of state reforms to address the foreclosure crisis in Maryland.

A graduate of Brown University, Harvard Law School and the John F. Kennedy School of Government, Perez has spent his entire career in public service. From 2002 until 2006, Perez was a member of the Montgomery County Council.  He was the first Latino ever elected to the Council, and served as Council President in 2005.  Earlier in his career, Perez spent 12 years in federal public service.  As a federal prosecutor for the Civil Rights Division of the Department of Justice, he prosecuted and supervised the prosecution of some of the Department’s most high profile civil rights cases, including a hate crimes case in Texas involving a group of white supremacists who went on a deadly, racially motivated crime spree.  Perez later served as Deputy Assistant Attorney General for Civil Rights under Attorney General Janet Reno.  Among other responsibilities, Secretary Perez chaired the interagency Worker Exploitation Task Force, which oversaw a variety of initiatives designed to protect vulnerable workers.  Perez previously served as Special Counsel to Senator Edward Kennedy, and was Senator Kennedy’s principal adviser on civil rights, criminal justice and constitutional issues.  For the final two years of the Clinton administration, Perez served as the Director of the Office for Civil Rights at the United States Department of Health and Human Services.  Perez was a law professor for six years at University of Maryland School of Law and is a part-time professor at the George Washington School of Public Health.

No surprise  that a president who was a former law professor has shown his willingness to nominate other law professors for top jobs.  Best to luck to Perez in heading up this important division.

-JH

Faculty Promotions

If you're a faculty member who has been promoted this year, please share your good news by adding a comment to this post.  I'll collect them all in a few weeks and put up a comprehensive post.  I'll start by congratulating Richard Moberly (Nebraska) on his promotion to Associate Professor with Tenure.

rb

Westlaw Creates New Employment Databases

Carol Bredemeyer (Chase) writes to tell us:

Recently Westlaw released 18 new employee relations board databases. In addition to the Multistate Labor Relations Administrative Decisions database (MLB-ADMIN), 17 databases specific to the following jurisdictions were released: Alaska, District of Columbia, Hawaii, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, Oklahoma, and Oregon. The identifier for each is XXLB-ADMIN, where XX is the jurisdiction’s two-letter postal abbreviation.

rb

Clever by Twice Over

.
.
.
.
.
.
.
.
.
.
.
.
.

.

rb

Secunda and Mollica on Gross Case

In Gross v. FBL Financial, the Supreme Court will address how to analyze mixed-motive claims under the ADEA.  As most readers are aware, the 1991 Civil Rights Amendments changed the mixed-motive analysis for Title VII, but said nothing about the ADEA--leaving courts to disagree about whether ADEA cases should continue to use the older Title VII mixed-motive analysis.  A recent National Law Journal article looked to Paul Secunda (Marquette) and Paul Mollica for their take on the issue:

The underlying age bias claim in Jack Gross' case before the Supreme Court represents the somewhat typical controversy when an employer takes an adverse job action against an employee, triggering a discrimination complaint, said employment law scholar Paul Secunda of Marquette University Law School.

Gross' case is a so-called mixed-motive case, he said, unlike a pretext case in which the employee charges that the employer took the adverse action because of an illegal factor, such as race or sex, and the employer counters that the reason was legitimate, such as bad performance. The employee must prove that bad performance is a pretext for discrimination.

"Mixed motive is more nuanced and, properly thought of, is what happens in the usual employment situation," said Secunda. "The employer offers a range or layer of reasons, some legitimate, some illegitimate, and you're trying to figure out whether the illegitimate reason motivated the employer." . . .

The Gross case is one in a series of recent high court cases in the job bias area that are not so much about how employers should apply the anti-discrimination laws but about how job bias complaints are brought and litigated, said Paul Mollica, a partner at Chicago's Meites, Mulder, Mollica & Glink who co-authored an amicus brief for the National Employment Lawyers Association on behalf of Gross.

"These cases have been about, for example, what is a 'charge' filed with the EEOC, and is 'me, too' evidence admissible," he said. "These are lawyers' cases." . . .

A major part of this case is a circuit split over the need for direct rather than circumstantial evidence in these cases.  Although Justice O'Connor's direct evidence requirement was the rule before the 1991 amendments, I really don't understand how courts can avoid the Supreme Court's holding in Desert Palace, where the Court held that absent any congressional intent to the contrary, circumstantial evidence is OK.  Although the 1991 amendments didn't mention the ADEA, the ADEA doesn't have a direct evidence requirement, so Desert Palace pretty clearly means that circumstantial evidence is allowed in mixed-motive ADEA cases.  Gross' attorney, Eric Schnapper (U. Washington), makes the same point and I'd put my money on him on this issue.

FBL (via its attorney, Carter Phillips) is pushing to get rid of Price Waterhouse and use McDonnell Douglas for all discrimination cases. Secunda likes the idea of one test--"Why can't we have just one normal test? I'm looking at this from a prudential standpoint. I think we should have one standard that applies to all discrimination cases."-- but I'm pretty sure he doesn't want the same one as Phillips.

Stay tuned and try to catch the oral argument if you can; the battle between two of the most experience Supreme Court advocates should be a great one.

-JH

Unprotected Profanity

One of my students' favorite hypos is whether an employer can terminate an employee who uses profanity to engage in otherwise protected activity.  I usually use the facts from a former colleague's case in the Fourth Circuit, which--not surprisingly--didn't turn out so well.  In its recent Media General case, the Fourth Circuit has hit the replay button.  Among other ULPs the Board found that the employer unlawfully fired an employee for cursing while objecting to a series of upsetting letters from the company president about ongoing union negotiations.  The employee in question was talking with two supervisors, stating that the letters were stressing him out, then said "I hope that f*cking idiot doesn’t send me another letter. I’m pretty stressed, and if there is another letter you might not see me. I might be out on stress."  The company soon thereafter fired him, citing a company policy against threatening and abusive language.

The court was, grudgingly, willing to consider the statement as protected under Section 7 as an initial matter, but found that it lost protection because it was "egregious or flagrant.":

The lack of concurrence between [the president's] lawful letter and McMillen’s comment particularly disfavors protection. This was not a spontaneous outburst in response to an illegal threat but an ad hominem attack made in the context of a discussion McMillen initiated with two supervisors. It was a response to an undisputedly legal letter issued in exercise of the company’s rights. In addition, McMillen had not even read the letter in question, which further divorces his derogatory remark from the context of the ongoing labor dispute and thus makes the remark of a nature less eligible for protection. "[I]nsulting, obscene personal attacks by an employee against a supervisor need not be tolerated," even when they occur during otherwise protected activity.

Judge King filed a vigorous dissent that's well worth the read.

Hat Tip:  Dennis Walsh

-JH

Recently Published Scholarship

Article

• Elizabeth F. Emens, Intimate Discrimination: The State's Role in the Accidents of Sex and Love, 122 Harv. L. Rev. 1307 (2009).

Student Scholarship

• Mark C. Stephens, Losing Lift and Creating Drag! The Effect of National Mediation Board Execution and the Railway Labor Act Court Decisions on the Collective Bargaining Process in the Airline Industry: A Union Perspective, 15 Tex. Wes. L. Rev. 141 (2008).

rb