April 17, 2009
Hart on en banc argument in Dukes v. Wal-Mart
Melissa Hart (Colorado) has an excellent post at ACSBlog on the en banc argument in Dukes v. Wal-Mart--the largest employment discrimination class action case in history. The post dissects much of the questioning by the judges at the hearing, and you should read the whole thing for Melissa's analysis (and good links). Here's a teaser (some links removed):
An en banc panel of the Ninth Circuit recently heard arguments in Dukes v. Wal-Mart, the largest employment law class action in U.S. history, alleging gender discrimination against as many as 1.5 million female employees of the retail giant. The oral arguments came nearly eight years after the case was first filed in 2001, five years after the district court certified the class and four years after the case was first argued to a panel of the Ninth Circuit.
Thus far, both courts to consider the question have decided that the plaintiffs (some of which are pictured below) should be able to pursue their claims against the retail giant as a class. The case raises some of the most central questions in both class litigation and sex discrimination law, and the Ninth Circuit’s en banc decision stands poised to contribute significantly in both areas.
Melissa has written quite a bit about the Dukes case and about the social science evidence that formed the basis for the arguments to certify the class. It's good stuff
Hat tips: Chris Cassidy and Paul Secunda
"Systemic Harassment" to Tennessee
Workplace Sex as Incest
Mary Anne Case (Chicago) has just posted on SSRN her article (forthcoming Vermont L. Rev. and as a book chapter in Feminist and Queer Legal Theory) A Few Words in Favor of Cultivating an Incest Taboo in the Workplace. Here's the abstract:
The essay uses examples from the Clinton-Lewinsky scandal to the Aberdeen Proving Grounds; analogies to long-standing restrictions such as the Catholic monastic ban on particular friendships and the military ban on fraternization; and discussion of the EEOC’s Sexual Favoritism Guidance and Richard Wasserstrom’s utopian vision of perfect bisexuality to respond to concerns about undue restrictions of eroticism in the workplace such as those raised in work by Janet Halley and Vicki Schultz.
The essay forms a small part of the author’s broader project of a unified field theory of the treatment of liking and not liking in the law of employment discrimination, a theory accounting for both sexual and non-sexual forms of attraction and aversion between decisionmakers in the workplace and those they have the power to hire, fire or promote. At the core of the broader project is an insistence that decision makers be more attentive to the extent to which forbidden grounds play a part in an employer’s decision to prefer for employment those he or she “likes.” Just as hiring one’s friends is ordinarily unproblematic under Title VII, but can lead to a violation if one can only make friends with other white Anglo-Saxon Protestant males, so making hiring decisions on the basis of sexual attraction is not necessarily, but can be potentially, a Title VII problem.
Employees as Fiduciaries
Robert Flannigan (Saskatchewan) has just posted on SSRN his article The Fiduciary Duty of Departing Employees (forthcoming Canadian Labour & Employment L.J.). Here's the abstract:
April 16, 2009
ACS Preview of Ricci v. DeStefano
On Tuesday, the American Constitution Society held a press briefing on Ricci v. DeStefano, the employment discrimination case that will be argued in the Supreme Court next Wednesday, and which we've talked about before here, here, and here, for example. Panelists represented both sides of the case, although three of the four supported the city's side, and the discussion was good.
The ACS's web page details the briefing and provides audio and video here. From the description:
The panel featured:
* Moderator, Lia Epperson, Assistant Professor of Law, Santa Clara University School of Law
* Joshua Civin, Assistant Counsel, NAACP Legal Defense and Educational Fund, Inc.
* Derek Ho, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC
* Michael Rosman, General Counsel, The Center for Individual Rights
* Virginia Seitz, Partner, Sidley Austin LLP
More on Firings
Jeff's post on the firing of the surgical nurse reminded me of the description, at the blog Good and Plenty (via Minding the Workplace), of employees who have been laid off but are working until the termination of their contract as "Dead Men Walking." Now Evil HR Lady informs us, via National Law Journal, of a proposed new show on Fox "in which actual, struggling companies with about 15 to 20 employees will let their staffs decide who gets laid off. The employee-judges will use confidential information — salaries, job evaluations — to make that final call on the show."
The show is tentatively titled "Someone's Gotta Go." A google search on the name indicates the show already is in production, but that air dates have not yet been set.
As Evil HR Lady suggests, this "plot" likely will hit far too close to home for most of us.
401k Balances Take Awful Hit
The fact that 401k balances declined significantly from January 2008 to April 2009 is no surprise, but the degree is staggering. Long-term employees are getting hit hardest, because of their proportion of money-already-invested to money-invested-during-the-market-decline is much higher. This eye-popping chart comes from EBRI. Hat tip: Carol Furnish.
Another for the "Worst Terminations" File
According to MSNBC, a manager at Dean's West Clinic in Madison, Wisconsin was apparently a little too eager to inform a nurse that she was being laid off. The manager called the nurse out of a surgery (described only as "minor") to tell her that she was being terminated, leaving the surgical room without a nurse--not surprisingly, a violation of medical protocol.
I'm assuming that the just-terminated nurse then had to return immediately to the surgery, which reminds me never to have a medical procedure at that clinic.
Hat Tip: Lynn Dancy Hirsch
Olin Conference at UVA to Focus on Employment Discrimination
The John M. Olin Conference at the University of Virginia will be held this Friday and Saturday, Friday and Saturday, April 17-18, 2009. The topic is Combating Workplace Discrimination. Here's a description:
We can advance knowledge about how to combat workplace discrimination effectively by determining which of the many competing assertions about the incidence, causes and cures of workplace discrimination are supported by sound evidence.
The 2009 Olin Conference at the University of Virginia will bring together leading scholars from economics, law, political science, psychology, sociology and statistics to synthesize what we know about what works — and what doesn’t — in fighting workplace discrimination. Participants will also discuss how to communicate those best practices to organizations, courts and policymakers.
Panels will include:
- Sources and Mechanisms of Discrimination: Theory and Evidence
- Regulation of the Workplace: Theory and Evidence
- Dealing with Uncertainty: How Should Researchers and Courts Proceed?
April 15, 2009
Yale-Union Deal Reached
Steven Greenhouse at the New York Times is reporting that the two main locals of UNITE HERE at Yale have ratified collective-bargaining agreements with the university, potentially turning the corner on a very confrontational history. According to Greenhouse:
The agreements represent a sharp turn from Yale’s labor history, in which contracts were often reached only after acrimonious fights and the unions went on strike — nine times over the past four decades. The rancor gave Yale what was often called the worst labor record in American academia. . . .
The university’s current eight-year contracts expire in January. They were reached in 2003 after a 22-day strike in which 120 union leaders and members, including the A.F.L.-C.I.O.’s president, were arrested during a sit-in in New Haven. When those agreements were signed, more than a year after the previous agreements had expired, Yale and its unions created a labor-management policy board; top university officials and union leaders meet monthly to better understand each other.
The presidents of Yale’s two main unions, both locals of Unite Here — Local 35, which represents 1,200 dining hall and maintenance workers, and Local 34, which represents 3,400 clerical and technical workers — praised the new agreements. Each local, they said, got something it badly wanted. . . .
The jurisdiction of the maintenance workers’ local will be expanded to include employees at Yale’s new research center, called the West Campus, which straddles West Haven and Orange, Conn. The clerical workers’ local is likely to gain jurisdiction over many temporary positions as well as workers who, it says, were misclassified as managers. . . . Members of Local 35 will receive a 2 percent raise in the first year of its new contract and 3.25 percent raises in each of the following two years. Local 34 agreed to a one-year pay freeze beginning in January in exchange for assurances on job security. Its members will receive raises of 2 percent in the second and third years.
The agreements also address health care coverage and increases in pensions. It's nice to see bargaining, especially given this history, actually work out well occasionally. Although I will admit that some of the past Yale labor disputes have provided some good hypos in class.
Workplace Twitter Policies
You knew it was only a matter of time. Now that Twitter is becoming all the rage, employers have begun regulating employees' use of the service. The management-side Gruntled Employees blog has a post on the issue, from the perspective of an attorney being asked increasingly to develop Twitter policies for employers. In addition to some background on Twittering, it serves up it's own "twitterable Twitter policy" for employers:
Hat Tip: Jeremy Bordelon
Recently Published Scholarship
- Zachary A. Kramer, Heterosexuality and Title VII, 103 Northwestern University L. Rev. 205 (2009).
- Charles A. Sullivan, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191 (2009).
- Mark R. Bandsuch, S. J., Dressing Up Title VII's Analysis of Workplace Appearance Policies, 40 Colum. Human Rights L. Rev. 287 (2009).
- Katerina P. Lewinbuk, Russia's Labor Pains: The Slow Creation Of A Culture Of Enforcement, 32 Fordham Int'l L.J. 846 (2009).
- Jeannette Cox, "Corrective" Surgery And The Americans With Disabilities Act, 46 San Diego L. Rev. 113 (2009).
- Richard D. Shane, Teachers as Sexual Harassment Victims: The Inequitable Protections of Title VII in Public Schools, 61 Florida L. Rev. 355 (2009).
- Patricia Alten, GINA: A Genetic Information Nondiscrimination Solution in Search of a Problem, 61 Florida L. Rev. 379 (2009).
- David S. Caroline, Employer Health-Care Mandates: The Wrong Answer to the Wrong Question, 11 U. Pa. J. Bus. L. 427 (2009).
- Melissa Ilyse Rassas, Explaining the Outlier: Oregon's New Non-Compete Agreement Law & The Broadcasting Industry, 11 U. Pa. J. Bus. L.447 (2009).
- Carrie L. Flores, A Disability is Not a Trump Card: The Americans with Disabilities Act Does Not Entitle Disabled Employees to Automatic Reassignment, 43 Val. U. L. Rev. 195 (2008).
- Shannon G. Mink, If I Sign This Release, I Can Still Sue You Later, Right? The Current (and Future) Status of FMLA Waivers, 37 Cap. U. L. Rev. 137 (2008).
- Scott W. McKinley, The Need for Legislative or Judicial Clarity on the Four-Fifths Rule and How Employers in the Sixth Circuit Can Survive the Ambiguity, 37 Cap. U. L. Rev. 171 (2008).
Recently Published Scholarship
Employee Rights and Employment Policy Journal
vol. 12, #2 (2008)
- Michael Selmi, The 2007-2008 Term: The Government Changes Its Tune and the Supreme Court Takes a Pragmatic Turn, 12 Employee Rts. & Employment Pol'y J.161 (2008).
- Ian H. Eliasoph, Know Your (Lack of) Rights: Reexamining the Causes and Effects of Phantom Employment Rights, 12 Employee Rts. & Employment Pol'y J. 197 (2008).
- Barbara A. Atkin, Elaine Kaplan, & Gregory O'Duden, Wedging Open the Courthouse Doors: Federal Employee Access to Judicial Review of Constitutional and Statutory Claims, 12 Employee Rts. & Employment Pol'y J. 233 (2008).
- Michael P. Allen, Paul M. Secunda, Julie C. Suk, Brad Seligman, & Elaine W. Shoben, Employment Discrimination Remedies: The Shape of Lawsuits, the Shape of the Law: Proceedings of the 2008 Annual Meeting Association of American Law Schools Section on Employment Discrimination Law and Section on Remedies, 12 Employee Rts. & Employment Pol'y J.l 297 (2008).
- Kenneth G. Dau-Schmidt, Alan Hyde, Michael V. Risch, Jagdeep S. Bhandari, Ruben J. Garcia, Richard N. Block, & Orly Lobel, Economic Anaylsis of Labor and Employment Law in the New Economy: Proceedings of the 2008 Annual Meeting, Association of American Law Schools, Section on Law and Economics, 12 Employee Rts. & Employment Pol'y J. 327 (2008).
- Maria O'Brien Hylton, Together We Can: Imagining The Future of Employee Pensions, 12 Employee Rts. & Employment Pol'y J. 383 (2008).
April 14, 2009
AAUP on Faculty Salaries
The American Association of University Professors (AAUP) released yesterday On the Brink: The Annual Report on the Economic Status of the Profession, 2008-2009. The good news: average faculty salaries for college and university faculty in the United States rose an inflation-adjusted 3.3%. The bad news: don't expect a repeat performance. The relatively high raise last year was a result of a very low inflation rate during the time covered (0.1%). Salaries will take a hit this year because of tight state budgets and plummeting endowments.
Rubinstein on Reforming DFR
Mitchell Rubinstein (Adjunct Prof Blog, adjunct at St. John's & NYLS) has just posted on SSRN his article (forthcoming 42 Mich. J. L. Ref.) Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in Internal Union Review Tribunals and the Forgotten Remedy of Re-Arbitration. Here's the abstract:
This Article makes two proposals to reform duty of fair representation jurisprudence. First, this Article posits that putative plaintiffs should be required to have their claims adjudicated before internal union review tribunals as opposed to courts. This internal tribunal system, if procedurally and substantively fair, would provide unions with a complete defense to duty of fair representation claims. This would move most duty of fair representation disputes from the ex-post stage (after a court dispute has arisen) to the ex-ante stage (before a court dispute has arisen) and reduce unnecessary litigation. Second, this Article argues that the current system needs to be “tweaked” to return to the original Vaca v. Sipes, 386 U.S. 171 (1967), intent of utilizing rearbitration as a remedy, as distinguished from money damages, when a breach of the duty of fair representation is found.
This is a very timely article, given Justice Thomas's recent statement in 14 Penn Plaza that any ills caused by union arbitration of discrimination grievances are solved by the availability of DFR suits.
April 13, 2009
Not Working At Skadden
As many readers are no doubt well aware, law firm hiring hasn't been immune from the economic crisis. As stories of layoffs and rescinded offers to soon-to-be-graduates circulate, the New York Times is reporting on Skadden Arp's unique approach to a decline in work. Apparently, Skadden offered associates a year off, with one-third of their pay: no strings attached. You can seek legal volunteer work (as many are doing) or spend a year finally learning to play guitar--either way, the money is yours.
Skadden made this offer to all of its approximately 1,300 associates, with about 125 expressing interest (a number higher than they expected, which shows why I'm not working in a firm, because it's lower than I would have expected). The firm views it as a good way to reduce costs without having to layoff associates. At least not yet.
Unions Agree On Immigration Reform
Together again. At least on one issue. The New York Times (Julia Preston & Steven Greenhouse) has a story on the AFL-CIO and Change To Win reaching an agreement to work together for immigration reform. An outline of their position is due out later today, but includes some form of legalization for current undocumented workers and resists a broad temporary worker program. According to the Times:
In the new accord, the A.F.L.-C.I.O. and Change to Win have called for managing future immigration of workers through a national commission. The commission would determine how many permanent and temporary foreign workers should be admitted each year based on demand in American labor markets. Union officials are confident that the result would reduce worker immigration during times of high unemployment like the present. . . .
Thousands of immigrant farm workers and other low-wage laborers come to the United States through seasonal guest-worker programs that are subject to numerical visa limits and have been criticized by employers as rigid and inefficient. Many unions oppose the programs because the immigrants are tied to one employer and cannot change jobs no matter how abusive the conditions, so union officials say they undercut conditions for American workers. Highly skilled foreign technology engineers and medical specialists also come on temporary visas.
Advocates for immigrants said a unified labor movement could substantially bolster their position as they push for legislation to restructure the ailing immigration system. . . . A.F.L.-C.I.O. officials said they agreed with Change to Win leaders that, with more than seven million unauthorized immigrants already working across the nation, legalizing their status would be the most effective way to protect labor standards for all workers. . . .
Labor leaders said that they would talk with other groups in coming weeks to nail down details of a common position, and that they would then would work in Congress and with the Obama administration to try to ensure that their proposal was part of any bill offered for debate.
Heaven knows we need to get some sort of immigration reform and that this could certainly help, but I'm not holding my breath.
Defamation Suits Rise?
Paul Secunda sends us word of the National Law Journal article out today, Workplace Defamation Suits Rise. Here's the thesis:
Defamation lawsuits are on the rise in the workplace as employees take on employers over the right to reputation, suing over being labeled as damaged goods after losing their jobs. With the economy forcing so many people out of work, lawyers say the environment is ripe for defamation claims.
The article, however, contains no empirical data to support the thesis -- just a list of recently filed cases and a series of anecdotal comments by practitioners.
PA Appellate Court Upholds $4 Million Award to Dental Prof
Dennis Nolan sends us a note about Helpin v. Trustees of University of Pennsylvania. The Chair of Penn's Dental Clinic got transferred, lost income, then sued for breach of contract.
On top of that, the court excoriated Penn's attorneys for drafting an appellate brief containing a fact section "rife with contention, its characterizations of the record sharply skewed". For more, see Inside Higher Ed, $4 Million Verdict Against Penn Upheld.
Harper Jean Tobin on GINA and Federalism
Harper Jean Tobin (Nat'l Senior Citizen's Law Center) has posted on SSRN her new paper, The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence. From the abstract:
This paper provides not just an important analysis of one aspect of GINA, but also an important primer on the current state of the law on Congress' power to enact anditiscrimination legislation.