Workplace Prof Blog

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

MM

"Systemic Harassment" to Tennessee

Jason Bent (Smith & Bent, Chicago)'s article Systemic Harassment, which we noted last month, will be published in Tennessee Law Review.  Congrats, Jason!

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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:

This brief essay endorses Margaret Mead’s suggestion that it might be useful to think of sexual relations in the workplace in terms of an incest taboo. Several features of incest taboos are relevant to Mead’s suggestion: First, such taboos, while often embodied in law, do not rely principally on legal enforcement, but on internalized social norms, for their power. Second, at the core of such taboos is usually sex between people one of whom is hierarchically in a superior position to the other - what is generally prohibited is ancestor-descendant sex, not all sexual relations between family members; third, one potentially valuable function of incest taboos is to create a safe space, free from sexual demand, threat or possibility.

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.

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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:

In conventional terms, because employment relations are limited access arrangements, employees attract status fiduciary accountability. That conventional view has been sidelined in certain respects in Canada. Courts and commentators have asserted that ordinary employees do not have fiduciary obligations. Instead, employees are said to have distinct duties of fidelity (good faith) and confidence. Those duties, however, are but linguistic mutations of conventional fiduciary accountability. The Supreme Court of Canada recently had an opportunity to clarify the law in this area in RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc. (RBC). The opportunity was not taken. Clarification was put off to another day. Still, the decision essentially confirms that employees are subject to status fiduciary accountability, whatever terminology is used to describe that accountability.

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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:

On Tuesday, April 14, 2009, ACS hosted a press briefing on Ricci v. DeStefano, a case currently before the Supreme Court that presents important issues in the area of equal employment opportunity. Ricci involves the decision by the City of New Haven not to certify the results of a civil service exam administered to firefighters on the ground that the exam discriminated against minority firefighters and consequently was unlawful under Title VII of the Civil Rights Act of 1964. A group of white firefighters (and one Latino) who had scored well on the exam, but were not promoted when the city declined to certify the test results, allege that the city discriminated against them based on their race in violation of Title VII and the Equal Protection Clause of the U.S. Constitution. The city asserts that it was fulfilling its obligation to avoid race discrimination by refusing to rely on a flawed and discriminatory test. The lower courts sided with the city and dismissed the case. Now the Supreme Court will decide: did the city violate the laws against race discrimination, or uphold them? A diverse group of experts offered analysis of the case and its implications, and previewed some of the points likely to be considered when the Supreme Court hears oral argument on Wednesday, April 22, 2009.

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

MM

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.

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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.

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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

-JH

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:

After 50 years of legal and regulatory efforts to promote equal opportunity in workplaces, social scientists still do not agree on what measures work to combat employment discrimination. Scholars offer many opinions on “best practices,” but surprisingly little evidence supports many of these opinions.

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?

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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.

-JH

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:

Our Twitter policy: Be professional, kind, discreet, authentic. Represent us well. Remember that you can’t control it once you hit “update.”

Hat Tip:  Jeremy Bordelon

-JH

Recently Published Scholarship

Articles

• 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).

Student Scholarship

• 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).

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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).

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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.

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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:

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the “deep pockets.”

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.

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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.

-JH

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.

-JH

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.

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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. 

The court soundly reject[ed] the university's various arguments, most of which focus on whether the employment and compensation letters he received were equivalent to a contract (Penn argued that they were "aspirational" documents that were "far too ambiguous and imprecise" to be binding) and, even assuming there was a contract, that the damages awarded were excessive.  "In this case, the facts of record demonstrated that the [Children's Hospital] clinic prospered under Dr. Helpin's direction for 13 years and offered no indication that such prosperity would not have continued had Dr. Helpin been allowed to continue in his former capacity as the clinic's director," the appeals court wrote.

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.

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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:

The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the federalism revolution of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA's limited legislative history makes it vulnerable to attack - potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its commerce power, and not its Fourteenth Amendment remedial power; and second, that Congress failed to identify a sufficient threat to constitutional rights to justify subjecting states to suit. While there are strong grounds for rejecting these challenges, that outcome is far from certain. The risk of invalidation might have been minimized had Congress developed the rationale for GINA's extension to the states more thoroughly, or alternatively, required states to waive their immunity as a condition of federal grants. These strategies are exemplified by, respectively, the Voting Rights Act Reauthorization Act of 2006 and the proposed Employment Non-Discrimination Act - contemporaneous, but higher-profile, civil rights legislation that was carefully crafted to withstand the Court's rulings. To ensure the efficacy of future civil rights legislation, Congress should consistently tailor laws to withstand federalism challenges. Future laws should expressly invoke Congress's authority and intent to create remedies against states; be accompanied by a strong and targeted legislative record; expressly require waiver of state immunity; and specifically enumerate remedies.

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.

MM