March 28, 2009
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.
Recently Published Scholarship
- Anne Layne-Farrar (photo above), An Empirical Assessment of the Employee Free Choice Act: The Economic Implications (556).
- Orly Lobel & On Amir, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy (286).
- Andrew P. Morriss, William T. Bogart, Andrew Dorchak, & Roger E. Meiners, 7 Myths About Green Jobs (238).
- Richard A. Epstein, The Case Against the Employee Free Choice Act (212).
- Marc Edelman, Moving Past Collusion in Major League Baseball: Healing Old Wounds, and Preventing New Ones (118).
- Isaac B. Rosenberg, Height Discrimination in Employment (117).
- M. Todd Henderson, The Nanny Corporation and the Market for Paternalism (113).
- Adam B. Cox, Immigration Law's Organizing Principles (110).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (107).
- Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (104).
March 27, 2009
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.
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:
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!
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 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.
March 26, 2009
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.
Most of the Briefs in for Ricci
Yesterday was the due date for amicus briefs (14 of which were filed) in Ricci v. DeStefano, currently scheduled for argument before the Supreme Court on April 22. The reply brief for petitioners is due April 15, but that's the only step left before argument. Not all of the briefs are available online yet, or recorded in the Court's docket yet, but either this link to the ABA's Supreme Court Preview page, or this link to Scotuswiki should have them when they are available. I also have copies of most of the briefs and can e-mail them if anyone is interested.
I'll remind you of the facts of this case, generally. The City of New Haven gave two exams to establish lists of firefighters eligible for promotion, one for promotion to lieutenant and one for promotion to captain. The results of those lists showed disparate passing rates based on the race of the exam takers. And in terms of rank, African American and Latino exam takers were not ranked quite as highly as they had been in the two prior exams. As a practical matter, very few exam takers of color would be eligible for promotion under the City's rules. At the same time, the disparate passing rates were similar to those in prior years, and of those eligible for promotion from prior lists, African Americans and Latinos were generally as likely (for Latinos more likely at least in one cycle) to be chosen from the list to be promoted. The City has a Civil Service Board that must certify the exam results before the lists can be generated. After a series of hearings, the CSB declined to certify the results. The stated reasons for the two members who voted not to certify was that they were concerned that the test had created an adverse impact on the basis of race and that there might be other ways to assess fitness for promotion that would not have as big an impact.
Plaintiffs, nineteen white firefighters and one Latino firefighter sued the Mayor and several city officials, arguing that the defendants simply didn't want to promote so many white firefighters. The district court granted the defendants summary judgment, and the Second Circuit summarily affirmed, although in a denial of rehearing the court raised sua sponte, there were several opinions issued, as we noted here.
The parties' and amici's arguments mostly boil down to a few central issues. Those on the petitioners' side mostly argue that the decision not to certify the results based on the results of the test along racial lines was a classification on the basis of race. Because the decision was a classification on the basis of race, the decision not to certify should be subject to strict scrutiny, under which it would fail. The petitioners assert that the City had no compelling governmental interest: fear of Title VII liability without a strong basis in evidence would not suffice; racial balancing would not suffice; a desire for diversity or developing role models would not suffice; and fear of race-related political criticism would not suffice. Moreover, the means, throwing out the test results, was not narrowly tailored to any goal. The second argument on petitioners' side is that the decision also violated Title VII. The decision's racial motivation was disparate treatment, no defense of avoiding disparate impact should be allowed without a strong basis in evidence that the test did work a disparate impact that would violate Title VII, and that throwing the results out impermissibly "altered" the test, which is explicitly prohibited by Title VII.
On the respondents' side, the arguments also boil down to a few, but there is a little less overlap between the arguments made between the respondents and amici and among the amici. Generally, though, the briefs argue that while a decision not to discriminate is minimally race conscious, a race conscious decision is not a classification on the basis of race for purposes of the equal protection clause, and that holding otherwise suggests that Title VII's disparate impact provision violates the equal protection clause. Although even if it is and strict scrutiny is appropriate, diversity among first responders is necessary for public safety for the entire community and therefore is a compelling state interest. Respondents further argue that the defendants were honestly concerned that the promotions process including the test discriminated on the basis of race, that disparate impact discrimination is essential to the policies of Title VII, and that employers must be encouraged to voluntarily comply with the statute. Finally, the briefs argue that there is simply no evidence in the record to suggest that the defendants' assertion (that they believed the test created an adverse impact and that there may be other valid but less discriminatory alternatives) was not truly their belief. Without any evidence to suggest the defendants were being untruthful about their motivation, there is simply no evidence of pretext.
As a side note, the U.S. filed this brief on the side of neither party that agrees as a legal matter with respondents' arguments, but asks that the matter be remanded to develop the facts on pretext--to see whether the defendants truly believed what they asserted.
This case presents some difficult questions about what discrimination really is. This is going to be a great oral argument, so stay tuned.
March 25, 2009
Rubinstein on the Stimulus Package's Effects on LEL
Mitch Rubinstein (Adjunct Law Prof Blog) has just posted on SSRN his essay Obama's Big Deal; the 2009 Federal Stimulus; Labor and Employment Law at the Crossroads. Here's the abstract:
This Essay also reviews the historic relationship between the law and economic with respect to labor legislation. Additionally, this Essay reviews proposed labor and employment legislation that is likely to be enacted by the 111th Congress such as the Employee Free Choice Act, H.R. 1409, 111th Cong. (1st Sess. 2009), the Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act ("RESPECT"), H.R. 1644, 110th Cong. (1st Sess. 2007), The Equal Remedies Act, H.R. 5129, 110th Cong. (2d Sess. 2008), Employment Non-Discrimination Act ("ENDA"), H.R. 3685, 110th Cong. (1st Sess. 2007).
March 24, 2009
DOL's Wage & Hour Unit Found To Be Failing
Steven Greenhouse (NY Times) has a story on a recent GAO audit of the Department of Labor's Wage and Hour Division. The bottom line is not pretty. The GAO found widespread failure in the division's handling of wage and hour cases; although I knew there were problems, some of the findings made my jaw drop. Among them, according to Greenhouse:
In a report scheduled to be released Wednesday, the Government Accountability Office found that the agency, the Labor Department’s Wage and Hour Division, had mishandled 9 of the 10 cases brought by a team of undercover agents posing as aggrieved workers. In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery, the G.A.O., the nonpartisan auditing arm of Congress, found. . . .
“This investigation clearly shows that Labor has left thousands of actual victims of wage theft who sought federal government assistance with nowhere to turn,” the report said. “Unfortunately, far too often the result is unscrupulous employers’ taking advantage of our country’s low-wage workers.”
The report pointed to a cavalier attitude by many Wage and Hour Division investigators, saying they often dropped cases when employers did not return calls and sometimes told complaining workers that they should file lawsuits, an often expensive and arduous process, especially for low-wage workers.
During the nine-month investigation, the report said, 5 of the 10 labor complaints that undercover agents filed were not recorded in the Wage and Hour Division’s database, and three were not investigated. In two cases, officials recorded that employers had paid back wages, even though they had not. . . .
The accountability office also investigated hundreds of cases that it said the Wage and Hour Division had mishandled. In one, the division waited 22 months to investigate a complaint from a group of restaurant workers. Ultimately, investigators found that the workers were owed $230,000 because managers had made them work off the clock and had misappropriated tips. When the restaurant agreed to pay back wages but not the tips, investigators simply closed the case. In another case, the accountability office found that workers at a boarding school in Montana were not paid more than $200,000 in overtime. But when the employer offered to pay only $1,000 in back wages as the two-year statute of limitations approached, the division dropped the case.
Secretary of Labor Hilda L. Solis said she took the report’s findings seriously. . . . Ms. Solis said the Wage and Hour Division planned to increase its staff by a third by hiring 250 investigators — 100 of them as part of the federal stimulus package — “to refocus the agency on these enforcement responsibilities” and “ensure that contractors on stimulus projects are in compliance with the applicable laws.” . . .
The report concluded that the Wage and Hour Division had mishandled more serious cases 19 percent of the time. In such cases, the accountability office said, the division did not begin an investigation for six months, did not complete an investigation for a year, did not assess back wages when violations were clearly identified and did not refer cases to litigation when warranted. . . .
D.C. Circuit Reverses NLRB In Support of Religious Employer
We posted a few years back (there's a sign of circuit court delay) on the Carroll College case, in which the NLRB rejected the school's argument that it should be exempt under the NLRB because of its religious affiliation. The NLRB found that the school had few current connections to the Presbyterians that founded it. The D.C. Circuit, however, has just disagreed.
Applying the Supreme Court's Catholic Bishop rule and its own holding in University of Great Falls, the court held that by being a nonprofit that was affiliated with and presented itself as a religious institution, Carroll College met the threshold for the religious exemption under the NLRA. This is a pretty broad interpretation, one that essentially lets any school with religious affiliation of any sort claim itself as a religious institution for NLRA purposes. There are obviously good reasons not to look too hard at religious claims--which was the crux of the Great Falls rule--but this seems to be crossing the line into being overly permissive. Indeed, Carroll College's news release on the decision shows that some of these employers are far more concerned about warding off a union than any interference with religion, as its opening line states: "The D.C. Federal Circuit Court ruled today that Carroll University faculty do not have a right under federal law to form a union."
Hat Tip: Brendan White, and others
Specter To Oppose EFCA
Although union supporters had hoped that Sen. Specter (who sponsored an earlier EFCA bill) would come out in support of the Employee Free Choice Act, he just announced that he would vote against ending a filibuster of the bill. It's possible that yet another primary challenge may have played a role, but his stated reasons:
"The problems of a recession make this a particularly bad time to enact Employee's choice legislation," he said. "Employers understandably complain that adding a burden would result in further job losses. If efforts are unsuccessful to give labor sufficient bargaining power through amendments to the [National Labor Relations Act] then I would be willing to reconsider Employees choice legislation when the economy returns to normalcy. I am announcing my decision now because I have consulted with a very large number of interested parties on both sides and I have made up my mind."
Hat Tip: Justin Keith
Recently Published Scholarship
- Ann C. McGinley (left), Reproducing Gender on Law School Faculties, 2009 BYU L. Rev. 99 (2009).
- D. Wendy Greene (right), Title VII: What's Hair (and other Race-Based Characteristics) Got to Do with It?, 79 Colorado L. Rev. 1355 (2008).
- Bruce A. Miller & Ada A. Verloren, Workers' Free Choice: An Unrealized Promise, 54 Wayne L. Rev. 869 (2008).
- Christopher J. Lenhardt, Michigan's Workplace Enforcement Law: Encroachment on Traditional Federal Power or Effective Socioeconomic Policy?, 86 U. Det.-Mercy L. Rev. 245 (2009).
Gettelfinger To Retire Next Year
UAW President Ron Gettelfinger has confirmed what he has said all along: he's going to retire at the end of his term in June 2010. The move is a reflection of Gettelfinger's promise to abide with the UAW's mandatory retirement policy, which kicks in at 65. Needless to say, he will be a busy man over the next year and how the UAW works with the automakers during that time is likely to be the most lasting legacy of his long career with the union.
Finkin & Post on Academic Freedom
Congratulations to Matt Finkin (Illinois) and Robert Post (Yale) on the publication of their book For the Common Good: Principles of American Academic Freedom. Here's the publisher's description:
Matthew W. Finkin and Robert C. Post trace how the American conception of academic freedom was first systematically articulated in 1915 by the American Association of University Professors (AAUP) and how this conception was in subsequent years elaborated and applied by Committee A of the AAUP. The authors discuss the four primary dimensions of academic freedom—research and publication, teaching, intramural speech, and extramural speech. They carefully distinguish academic freedom from the kind of individual free speech right that is created by the First Amendment. The authors strongly argue that academic freedom protects the capacity of faculty to pursue the scholar’s profession according to the standards of that profession.
Ellen Dannin writes to tell us that the 2009 National Policy Forum: New Frontiers in Labor and Employment Policy: Ensuring Good Jobs, Fair Treatment, and High Performance in a Turbulent Economy will be held June 11-12, 2009, Washington, D.C. at the Cafritz Conference Center, George Washington University Campus. It's Co-sponsored by BNA and the Department of Management, George Washington University.
Program Chair: Joel Cutcher-Gershenfeld
Co-chairs: Thomas Kochan, MIT; Bonnie Summers, Blue Cross/Blue Shield Association; Richard Trumka, AFL-CIO
This year's Policy Forum will have a particular focus on policy issues around union organizing, pension and health care benefits, and other issues for which legislative debates are anticipated and where public policy can be informed by scholarly research and practitioner perspectives. The Forum will also consider state and industry-level challenges in rebuilding the American Dream and surface deeper underlying assumptions about the workforce, unions, employers and other stakeholders.
Through a series of seven workshops and four plenary sessions featuring panels of legislators, labor and management practitioners, and leading researchers, the LERA 2009 NPF will provide a unique opportunity to participate in the public policy dialogue concerning today’s most pressing problems.
March 23, 2009
Kirsanow On EFCA Compromise
Rick recently reported on a proposed compromise on the Employee Free Choice Act. Former NLRB member Peter Kirsanow was now written a response to this "Third Way" compromise in the National Review Online. According to Kirsanow:
The Third Way compromise purportedly does not include card check or mandatory arbitration, but requires that secret-ballot elections be conducted by a date certain from the time a union petitions for an election. No delays are permissible. Moreover, unions would be permitted “equal access” to employees during working hours, so that employees may be persuaded to join unions. The Third Way would also include tougher penalties for unfair labor practices. There would be no mandatory arbitration wherein contract terms are dictated, but it would apparently include an expedited timetable for negotiations. . . .
The AP reports that another compromise fashioned by an attorney for certain unnamed companies in the service industry would also give unions equal access to employees if 30% of employees sign cards. If a union succeeds in getting 50% of employees to sign cards, then it may petition the NLRB for a “quickie” election to be conducted in 15 days. If a union succeeds in getting 70% of the employees to sign cards, then the union would be certified without a secret-ballot election (EFCA as currently drafted permits certification once 50%+1 of employees sign cards). This compromise is arguably worse than EFCA — retaining the essential features of EFCA while providing the fig leaf of maintaining the secret ballot.
The common denominator in both compromises is “equal access.” Equal access was a concept repeatedly referred to by Senator Harkin during the EFCA hearing two weeks ago and is also the central focus of alternative legislation introduced by Rep. Sestak (D, Pa.).
Although the Third Way proposal purports to be more palatable than EFCA, no details have been provided. However, an “equal access” provision coupled with a streamlined or “quickie” election process could produce unionization results not markedly different from card-check.
Expect more compromises to be floated in the coming weeks. Nonetheless, business remains nearly monolithic in its staunch opposition to any bill even remotely related to EFCA, which business perceives to be, among other things, a massive job killer, especially in today’s economic climate.
Hat Tip: Justin Keith
From Jobless to Topless
In a sign of how serious unemployment is becoming, the AP has a recent report on the increase in women seeking employment in the adult entertainment industry. The article provides some interesting insight--and forthrightness--into the industry:
The tough job market is prompting a growing number of women across the country to dance in strip clubs, appear in adult movies or pose for magazines like Hustler. Employers across the adult entertainment industry say they're seeing an influx of applications from women who, like Brown, are attracted by the promise of flexible schedules and fast cash. Many have college degrees and held white-collar jobs until the economy soured. . . .
Makers of adult films cautioned that women shouldn't rush into the decision to make adult movies without considering the effect on their lives. "Once you decide to be an adult actress, it impacts your relationship with everyone," said Steven Hirsch [no relation to me--at least that I'm aware of], co-chairman of adult film giant Vivid Entertainment Group. "Once you make an adult film, it never goes away." . . .
In this economy, "desperate measures are becoming far more acceptable," said Jonathan Alpert, a New York City-based psychotherapist who's had clients who worked in adult entertainment. . . .
Dancers at the upscale Rick's Caberet clubs in New York City and Miami can make $100,000 to $300,000 a year — in cash — even with the economic downturn, club spokesman Allan Priaulx said. . . .
Still, analysts say, the industry isn't immune to the economic recession. Business is down an estimated 30 percent across all segments, including adult films, gentleman's clubs, magazines and novelty shops, said Paul Fishbein, president of , an adult entertainment company that has a widely distributed trade publication and an award show. . . .
Strip club dancers and managers said they're drawing in the same number of customers, but fewer high rollers. "They're not getting the big spenders," said Angelina Spencer, executive director of the Association of Club Executives, a trade group for adult nightclubs. "They're not getting the guys who come in and drop $3,000 to $4,000 a night anymore." Still, the clubs' operating structure leaves them with low overhead and profit margins of up to 50 percent, Wold said.
Dancers are independent contractors, paying clubs a nightly flat fee depending on how long they work. At the Pink Monkey, for example, dancers who arrive at 7 p.m. Sunday through Thursday pay a $40 "house fee," while women who don't arrive until midnight pay $90. And they keep their tips. . . .
Hat Tip: Lynn Dancy Hirsch & Dennis Walsh
Drummonds on Workplace Federalism
Henry Drummonds (Lewis & Clark) has just completed his article, "Beyond the Employee Free Choice Act Debate: Unleashing the States in Labor-Management Relations Policy by Reforming Labor Law Preemption Doctrines Crafted by Judges a Half-Century Ago." According to the abstract:
Second, in Chamber of Commerce v. Brown, a majority of the U.S. Supreme Court continued the expansion of judicially created labor law preemption doctrine by striking down California’s law attempting to limit employer use of state monies in union organizing campaigns; such rulings deprive citizens of their right under the constitutional division of powers, absent a decision of the Congress to supplant state authority under the Supremacy Clause, to express their preferences about labor relations policy through their local and state governments. As Chief Justice Rehnquist pointed out more than 20 years ago: “From the acorns of [two early] decisions has grown the mighty oak of this Court’s labor preemption doctrine, which sweeps ever outward though totally uninformed by any express directive from Congress.”
I've also got an article that's just out which argues the exact opposite, but one area that Henry and I agree is the need to take a serious look at the role of states and the federal government in regulating the workplace. Although we come to different conclusions, Henry brings out many good points and helps foster what I hope is the beginning of a long discussion.
I don't have a link for the article, but would be happy to send it to anyone who emails me (email@example.com).
Hat Tip: Paul Secunda
March 22, 2009
New Department of Labor Nominees
The White House recently announced three new nominees for the Department of Labor: Patricia Smith as Solicitor, Brian Kennedy as Assistant Secretary for Congressional and Intergovernmental Affair, and Michael Kerr Assistant Secretary for Administration and Management. Partial bios on the three, courtesy of the Washington Post's "Head Count" site (which is a great resource for tracking political appointees):
Smith has been a labor advocate for more than 30 years. She is currently the commissioner of the New York State Department of Labor, a department with an annual budget of $4 billion, 3,700 employees and 80 offices throughout the state. [She was also labor bureau chief for New York State's Office of the Attorney General.]