April 3, 2009
Profs on YouTube
The ABA Journal has picked up on a blog post by James Levy over at Legal Writing Prof Blog (which itself picked up on an article in the Chronicle of Higher Education) and run a story on the dangers of digitally taping lectures (and more):
Another professor at George Washington University made a frantic call to make sure a private conversation with a student worried about failing grades was cut from the tape. Officials complied, avoiding online dissemination of a conversation that would have violated federal law, according to the story. Yet another professor was placed on leave at the University of Florida’s business school after he appeared disoriented in a videotaped lecture posted to YouTube that was originally titled “apparently baked professor.”
Hat tip: Jerry Kalish.
British Terms of Endearment
From PJH Law:
First Circuit Reinstates Triplets Case
Michael Fox calls to our attention a First Circuit decision from last week which reversed an entry of summary judgment in a nonpromotion case brought by a mother of triplets. The person selected for the promotion also was a mother, though not of triplets. The First Circuit found that childcare-related comments, plus inconstitent reasons given for the nonpromotion, were sufficient to send the case to a jury. The court stated:
The case is Chadwick v. Wellpoint, Inc. (1st Cir. 3/26/09).
Churchill Wins' Receives Only Nominal Damages
Ward Churchill, the professor fired by the University of Colorado for criticizing the U.S. after the 9/11 attacks, won his First Amendment case yesterday, but received only $1 in damages. See the New York Times story here. Brian Leiter speculates that the jury either expected him to be reinstated, or wanted to say, "He was wrongfully fired, but we're glad he was fired anyway because we don't like his views".
April 2, 2009
A New Tactic In Labor Relations
My students really liked this story when I first mentioned it to them--so much so that I began worrying for my safety. Proving yet again that no one knows how to hold a labor protest like the French, there's been a recent rash of French workers holding their bosses hostage. From the New York Times:
When negotiations over the revamping of Caterpillar’s operations in the French city of Grenoble broke down this week, the workers did what more and more of their countrymen are doing these days: They took their bosses hostage.
This week, François-Henri Pinault, the chief executive of PPR, the group that owns Gucci, was trapped by a group of employees who surrounded his car and blocked the road with garbage cans.
In two other incidents last month, workers at a 3M plant held their boss for more than 24 hours in a labor dispute, and workers at a Sony plant held their boss overnight to gain better severance packages.
While detaining company executives against their will is not new in France, the tactic has been used only sparingly. But French labor policy experts say they expect more such actions because the despair and anxiety that drive employees to such acts is increasing as the labor market worsens. . . .
At the root of the wave of recent actions is a sense of injustice as France addresses the economic crisis, according to Jean Kaspar, a former miner and union official who now consults on labor relations. The government has set aside 26 billion euros ($35 billion) for big companies, he said, but less than 3 billion euros for consumers. “Ordinary people cannot understand how bosses are getting bonuses and golden parachutes while the rest of the population is worried about their jobs,” Mr. Kaspar said. “That has caused a certain radicalization of the social base.”
So far, no one has been hurt in the “séquestrations,” as the French refer to the hostage-taking. The unions, and most French people, have refused to condemn the actions, saying it is understandable, if not defensible, that people faced with the loss of their livelihoods would take such risks.
At Caterpillar, the company executives, including Nicolas Polutnik, the chief executive of Caterpillar France, were subjected to a night of pounding revolutionary rock music and threats shouted by workers, said Eric Amstutz, a spokesman in Geneva for Caterpillar’s European operations. Union members took the action after an announcement of 700 job cuts.
No word on what exactly "revolutionary rock music" consists of, which in mind would really help determine whether these actions go beyond the pale.
OSHA Fails In Attempt To Regulate Most Dangerous Workplaces
Last week, it was an audit showing the failing of Department of Labor's Wage and Hour Division. This week it's OSHA's turn. The Washington Post is reporting on a DOL audit finding serious problems with an OSHA program designed to improve conditions at the most unsafe workplaces. According to the Post:
A special government program to improve worker safety in hazardous industries rarely fulfilled its promise, a Labor Department audit concluded yesterday, and over the past six years, dozens of deaths occurred at firms that should have been subjected to much tighter federal safety enforcement.
The report was the first detailed appraisal of a highly touted Bush administration initiative that called for the Occupational Safety and Health Administration to devote attention and resources to improving safety at companies with a troubled history of job-related fatalities. The study found that officials failed to gather needed data, conducted uneven inspections and enforcement, and sometimes failed to discern repeat fatalities because records misspelled the companies' names or failed to notice when two subsidiaries with the same owner were involved.
Last year, the administration also changed the program's rules, sharply reducing the number of companies eligible for special attention. Proper enforcement might have "deterred and abated workplace hazards at the worksites of 45 employers where 58 subsequent fatalities occurred," Assistant Inspector General Elliot P. Lewis wrote in the report.
As an example, the report said that two similar worker deaths had occurred at different facilities operated by the Tennessee Valley Authority and that the second one might have been prevented if the first one had prompted appropriate enforcement and special inspections. In all, the audit said, a little more than half of the 282 fatalities that should have been included in the Enhanced Enforcement Program were not properly logged, partly because of poor training at OSHA.. . .
According to an internal OSHA memorandum obtained by The Washington Post, dated March 19 and written by Richard E. Fairfax, director of enforcement programs, the rules changes made in January 2008 caused the number of companies targeted by the Enhanced Enforcement Program to drop from a peak of 719 in fiscal 2007 to 475 in fiscal 2008.
The extra attention is now given mostly to companies responsible for "low and medium gravity serious repeated violations," Fairfax wrote to OSHA's acting director, Donald G. Shalhoub. OSHA is still "not targeting the 'bad actors' the program is intended for," he said.
Not a surprise, but here's hoping that a new OSHA director can start getting things back on track.
Hat Tip: Dennis Walsh
Wayne Forum: Resuscitating Labor Law
Wayne State University Law School will host on April 6 a Forum on Resuscitating and Revitalizing American Labor Law Policy: A Constructive Dialogue on Areas of Agreement. The keynote speaker will be Wilma Liebman (left), chair of the National Labor Relations Board. Forum discussion facilitators include: Moderator Bill Mateikis, Wayne Law visiting professor of law; Joseph Canfield, attorney, NLRB, Region 7 and Wayne Law adjunct professor; and Marick Masters, director of the Douglas A. Fraser Center for Workplace Issues and Labor@Wayne. Forum panelists include: Elizabeth Bunn, UAW secretary-treasurer; Martin Mulloy, Ford Motor Co. vice president, Labor Affairs; and Peter Pantaleo, partner, DLA Piper.
This Article performs an analysis of several hundred federal district court opinions, examining the impact of the Bell Atlantic decision on ADA claims. Attempting to provide clarity to disability pleading, this Article proposes a unified analytical framework for alleging disability discrimination, which satisfies the recent Supreme Court case law, the amendments to the ADA, and the federal rules. The analytical framework proposed by this Article would streamline the pleading process for disability claims, and provide a blueprint for litigants and courts in analyzing cases brought under the revised ADA. The paper concludes by exploring the possible implications of adopting the proposed model.
On Defined-Benefit Plans
Two studies just posted on SSRN paint a dismal picture of defined-benefit plans. A study by Barbara Butrica et al., The Disappearing Defined Benefit Pension and its Potential Impact on the Retirement Incomes of Boomers, shows that on balance, the shift from defined-benefit to defined-contribution plans will produce more losers than winners and will reduce average retirement incomes. A study by David Love et al., Should Risky Firms Offer Risk-Free DB Pensions?, shows that mispriced pension insurance gives firms an incentive to introduce risk into their pension promises.
Using Bankruptcy to Reject CBAs
If GM and Chrysler are headed for bankruptcy, it's primarily so that they can further slash labor costs. Section 1113 of the bankruptcy code permits a bankruptcy court to reject or modify a collective bargaining agreement if rejection or modification is "necessary to permit the reorganization of the debtor." The federal circuits are split on the meaning of "necessary." The Third Circuit has held that a cba can be rejected or modified only if the alternative is the company's immediate liquidation. The Second Circuit imposes a standard that's much easier for a company to meet: the cba can be rejected or modified if rejection or modification serves the long-term goal of a successful reorganization. The Sixth Circuit, which covers Michigan, has not definitively ruled on the issue. For that reason, if GM or Chrysler file for bankruptcy, I expect expect the filing to be in New York.
For more, see Smith & Bales, Reconciling Labor & Bankruptcy Law: The Application of 11 U.S.C. Section 1113, 2001 MSU L. Rev. 1146.
Current Employment HR Law & Policy News. Check it out.
April 1, 2009
New York Workers Comp
The New York Times has a series--co-authored by Steven Greenhouse--looking at New York's workers compensation system. The title says it all: "A World of Hurt." It's a story of delay, high costs-low benefits, and a litany of other problems. Included are also pages chronicling delays, the Workers' Compensation Board, and a comparison of states.
Hat Tip: David Yamada
Argument Recap in Gross v. FBL Financial Servs.
The Supreme Court held oral argument yesterday in Gross v. FBL Financial Services, a case involving when a mixed motive jury instruction will be proper under the Age Discrimination in Employment Act. The plaintiff in Gross had asked for a mixed motive jury instruction, and the defense resisted, arguing that because it had not raised any affirmative mixed motives defense that the instruction was improper.
The oral argument aptly demonstrated, the conceptual mess that employment discrimination cases can present. Counsel for plaintiffs, (Eric Schnapper, Univ. Washington) began by focusing on the direct evidence question. Justice O'Connor's concurrence in Price Waterhouse had said that a mixed motive instruction would be proper when plaintiffs had direct evidence of discrimination. So the argument basically was that the Court had rejected that notion in Desert Palace. In a portion of the opinion not analyzing the Civil Rights Act of 1991 (which did not amend the ADEA, but did amend Title VII), the Court had held that no particular type of evidence, nor more than a preponderance of that evidence is ordinarily required to prove an element of a cause of action absent some statutory directive about the type or quantum of evidence required. The ADEA has no statutory provision providing for a particular type or quantum of evidence, and thus, one shouldn't be imposed. In the course of this discussion, the Justices pushed counsel to define what direct evidence actually is and to explain which opinion in Price Waterhouse should be considered the controlling opinion. Neither issue is clear.
The Solicitor General appeared as an amicus on the petitioner's side, and urged the Court to focus on this narrow issue, and not accept the respondent's argument that the entire proof structure should be revisited. If the entire mixed motive proof structure is revisited, the Court will call into question many other areas of law that use the same or a similar analysis.
The respondent argued very broadly that the entire proof structure and causation analysis in employment discrimination cases should be revisited. The bulk of the discussion on respondent's side was probing into the nature of what a mixed motive is. So there were many questions about multi-party decisions, where some may have an improper motive, and others have a proper motive, and whether that was different from a situation in which a single actor has both proper and improper motives. There was also discussion about how much the improper motive had to weigh in the actor's calculus. Finally, there was discussion about how much proof was needed for a plaintiff to get a mixed motive instruction over the defense's objection since that instruction essentially shifts the burden of proof to the defendant on whether it would have made the same decision without the improper motive.
This case involves some serious questions about how individuals make decisions that could go to the core of many anti-discrimination laws. We've operated under an assumption for a long time that people usually act with a single motive, and act in full self awareness of that motive. We have also recognized that occasionally, people will act with more than one motive, but each motive is considered discrete and separable. Cognitive psychology has cast doubt on the accuracy of that model of human decisionmaking. Perhaps the respondent is right that it's time for some very deep thinking on these issues.
Supreme Court Issues Pyett: CBA May Require Arbitration of Statutory Claims
Here's the decision in 14 Penn Plaza v. Pyett, issued today. Hat tip: Alexander Leonard. The decision was 5-4. Thomas wrote the majority opinion; Souter and Stevens wrote dissents.
14 Penn Plaza v. Pyett raised the issue of whether an arbitration clause, contained in a collective bargaining agreement but covering statutory issues as well as contract issues, is enforceable as to those statutory issues. In Alexander v. Gardner-Denver, the Supreme Court held that arbitrating a contract claim does not preclude litigating a statutory claim on the same facts. The Court said some very negative things about the arbitration of statutory employment claims, one of which was that unions couldn't be trusted to enforce the statutory rights of minority employees. Another was that statutory claims generally were not suitable for arbitration.
14 Penn Plaza all but reverses this part of Alexander v. Gardner-Denver. Here's my summary of the Court's reasoning: The NLRA says that employers and unions may bargain for terms and conditions of employment. The arbitration of discrimination claims is a term or condition of employment, so arbitration agreements covering discrimination claims are enforceable absent a specific provision in an antidiscrimination statute stating otherwise. There is no such provision in the ADEA. Therefore, arbitration agreements covering discrimination claims are enforceable. Gardner-Denver is not on point because the employer and union in that case had not agreed to arbitrate their statutory claims; Gardner-Denver was decided "on the narrow ground that arbitration was not preclusive". Language in Gardner-Denver critical of arbitration, and suggesting that majoritarian unions might not vigorously pursue minority rights, was dicta and is wrong.
The dissent argued that Gardner-Denver is directly on point, because it held squarely that the rights conferred by antidiscrimination statutes -- including the right to sue for enforcement -- cannot be waived by a union. The majority's narrow reading of the case -- as holding only that arbitration was not preclusive because the arbitration clause did not cover statutory claims -- is wrong; it was only one of many reasons the Gardner-Denver Court gave for its holding, and the Pyett majority ignores those reasons.
I suggested in an earlier post that
the Court should hold that a union-negotiated waiver will be effective only if the arbitration agreement provides employees with an adequate forum for resolving their statutory rights. No forum, no waiver. Unions could provide this forum in a variety of ways, such as by guaranteeing that that all statutory claims will go to an arbitrator, or by giving employees the right to pursue arbitration under the collective bargaining agreement at their own expense.
The Court, however, expressly declined to consider this issue, finding that it had been inadequately briefed. The dissent pointed out that for this reason, the case may have little effect.
A couple of notes. First, I think it's disingenuous of the majority to claim that its decision is based on a textualist reading of the statutes. Of course the ADEA doesn't explicitly state that age discrimination claims are not subject to mandatory-arbitration agreements agreed to by unions on behalf of employees -- when Congress passed the ADEA, every federal court in the country had held predispute arbitration agreements were not enforceable as to any statutory claims whatever. A true textualist would look to the enforcement provision of the ADEA, which states explicitly that aggrieved employees have the right to sue for enforcement. Second, I think the dissent is right that Gardner-Denver stands for much more than the majority claims. Finally, I am disappointed that the Court punted on the issue of what happens when union controls an individual's access to the arbitral forum. This part of Gardner-Denver's analysis has gone, to my mind, unrefuted.
For additional commentary, see Michael Fox at Jottings by an Employment Lawyer (pointing out that Pyett may be a boon to the proponents of the Arbitration Fairness Act); Matt Bodie at Prawfsblawg; and Ross Runkel at LawMemo.
Comments are welcome.
OSHA Revises Its Field Operations Manual
The Field Operations Manual, formerly called the Field Inspection Reference Manual, covers inspections, citations, and penalties. The Manual is available online here.
March 31, 2009
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.
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
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
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:
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.
Politico Debates EFCA
Politico is sponsoring a debate this week on the Employee Free Choice Act. Here's a description, from Moderator Fred Barbash:
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.