Workplace Prof Blog

EEO and the H1N1 Flu

The EEOC has just released guidance for employers related to the H1n1 flu virus.  The key things to remember are that the ADA limits pre-employment inquiries, and that Title VII proscribes national origin discrimination.  See ADA-Compliant Employer Preparedness For the H1N1 Flu Virus; Employment Discrimination and the H1N1 (Swine Flu) Virus.

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Unemployment Up To 8.9%

The Department of Labor's Bureau of Labor Statistics released the April employment figures today.  As expected, the unemployment rate rose to 8.9%, based on a loss of 539,000 jobs that month (March's number was revised up to 699,000 job losses from 663,000).  That's higher than its been in decades, but the silver lining is that the employment numbers are declining at a slower rate.  On the other hand, the unemployed are staying that way for a while; 27% of them have been looking for work for over six months and the number of people who have found a new job in under five weeks is declining.

-JH

Update on Opposition to Draft Restatement of Employment Law

Ken Dau-Schmidt, Labor Law Group Chair, sent a letter to LLG members and others aptly summarizing the Group's opposition to the current version of the Restatement.  Here's an excerpt:

[T]here is still a lot of work to be done on the draft Restatement before it is ready for final adoption by the Institute.  At a minimum, the Proposed Restatement must be reworked to reflect a consistent and theoretically adequate basis for a separate restatement of employment law and to correct numerous remaining misstatements of precedent.  Without a consistent rationale for a separate restatement of employment law, it is hard to see how the current draft can be made internally consistent, or consistent with the Institute’s other projects in tort and contract. Without correction of the misstatements that remain, it is impossible to say that the draft reflects an accurate restatement of employment law. 

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Although the reporters that the ALI currently has working on the project are all talented academics, we feel that they are unduly dominated by the employer perspective.  The Chief Reporter, Sam Estreicher, is a talented academic whose work is strongly identified with employer interests and who works "of counsel" for a management firm.  Andy Morriss is also very talented, and perhaps the strongest supporter of the "at will" doctrine in the academy. Either because of perspective, experience or time commitments, there is no current reporter who can act as an effective counter-balance to these perspectives.  Consistent with common practice in labor and employment law, we feel that at least two new reporters should be appointed, one with work identified with employee interests and one clearly neutral, who are of equal authority with any of the reporters currently on the project.  Such a balancing of perspective would undoubtedly improve the Proposed Restatement and its claim on being a consensus view of the law.  We also feel that the reporters should be given time to rework their drafts to take account of the views of the new reporters and the comments of our Working Committees before they receive final approval by the American Law Institute.  Without these changes and time for our views to have an effect, it is hard to see how the participation of an adviser and two liaisons from the Group will have a meaningful impact on the project.

To that end, Lea Vandervelde and Joe Grodin will submit separate motions to ALI.  Lea's motion will be to defer adoption of any chapter until all are before the house.  Joe's will be to defer adoption until the advisors and members consultative committee have a chance to integrate the material into the current version.

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Ninth Circuit En Banc Finds GERA Valid under Section 5 of the Fourteenth Amendment

To celebrate my break from grading federal courts exams, we bring you this case, which could itself be a federal courts exam.

The Ninth Circuit sitting en banc issued Alaska v. EEOC, last week, reversing the panel decision (original decision here, petition for rehearing here, and blogged here) and finding that Congress had validly abrogated state Eleventh Amendment immunity in the Government Employee Rights Act of 1991 (Title III of the Civil Rights Act of 1991). The court found that Congress explicitly made states amenable to suit and that it had the power to do so under the Fourteenth Amendment at least insofar as these plaintiffs' claims were concerned. Judge O'Scannlain concurred in part and dissented in part, while Judges Ikuta, Tallman, and Callahan dissented. The facts of the case are relatively straightforward. Two policymaking employees of the former Alaska Governor's office sued for sexual harassment, sex and race discrimination in pay, and retaliation for opposing harassment.

This is an odd case for a large number of reasons. First, it's not the usual case where an individual seeks to sue the state in federal court. GERA gave the EEOC jurisdiction to adjudicate discrimination claims brought by policymaking state employees (and the other government employees that GERA extended antidiscrimination protection to). Nonetheless, the majority opinion assumed that the Eleventh Amendment would apply to these agency proceedings because they were sufficiently analogous to adjudication in a federal court--technically, in fact, this is adjudication in a federal court and the exercise of federal judicial power; it's just an Article I court rather than an Article III court.

Proceeding, the majority noted that there were two steps to the abrogation analysis: 1. Did Congress make clear that it intended to abrogate state immunity from suit; and 2. Did it have the power to do so under Section 5 of the Fourteenth Amendment? The majority answered the first question, "yes," explaining that GERA amended Title VII to remove the exemption of policymaking employees from the extension of protections to state employees in the 1972 amendments to Title VII. This was basically where the dissenters disagreed. GERA is its own title to the Civil Rights Act of 1991, it's codified in a place different from where Title VII is codified, it doesn't explicitly incorporate Title VII's definition of employer, which includes the state, and doesn't itself say that the state can be a defendant. It does empower the EEOC to impose most of the remedies that a court could impose under Title VII, and it does in rather passive form declare that "[a]ll personnel actions affecting . . . State employees . . . shall be made free from any discrimination . . . ." Overall, I agree that Congress intended to subject the states to actions within the EEOC, but I also agree that the provisions were somewhat inartfully phrased.

The majority also agreed with step 2, that Congress had the power to abrogate Eleventh Amendment immunity. This too has a test. In order to validly enact legislation under Section 5 of the Fourteenth Amendment, Congress must enact legislation that is congruent and proportional to constitutional harms. The Supreme Court has applied this a number of times, first looking to see what the alleged injury was, whether it violated the constitution (I think this is the congruence part), and if not, whether providing this remedy was nonetheless proportional to a documented record of constitutional violations by the states in this context.

Here is where the initial panel had started its analysis. It went straight to the legislative history and found no suggestion of a pattern of unconstitutional discrimination by the states against policymaking employees. The 1991 record was totally silent, and the legislative history from the 1972 amendments, which extended protection to state employees but excluded policymaking employees, provided no record on those policymaking employees. The majority of the en banc panel had the sounder approach, though, mimicking what the Court has done in its most recent Eleventh Amendment cases.

The majority found that the claims alleged by the plaintiffs were violations of the constitution--pay discrimination and sexual harassment are Equal Protection violations, retaliation is a First Amendment violation. Thus, enforcing GERA for these claims was perfectly congruent to what the Fourteenth Amendment provided, and no legislative record was needed to justify the legislation as it would be applied here. I won't go into the constitutional analyses--they are interesting, though, and I might follow up with a post on those alone.

Judge O'Scannlain disagreed on one of the claims. The majority had found that the retaliation claim actually stated a claim under the First Amendment. The employee was fired after she held a press conference, protesting the way that the office was handling claims of sexual harassment. Because policymaking employees do not have the same level of First Amendment protection as low level employees, Judge O'Scannlain believed that this employee would not have a valid claim. The majority rejected this reasoning because the level of position is relevant only in  in the balancing portion of the Pickering/Connick test in the need to require loyalty at that level. In that balancing it is the employer's burden to prove that its interests outweigh the employee's, and so the majority accepted just the prima facie case as sufficient to state a First Amendment claim.

No one argued it this way that I could tell, but there also might be an argument that if retaliation for protesting discrimination is itself discrimination (a la CBOCS West, Inc. v. Humphries and Jackson v. Birmingham Bd. of Educ.), then the retaliation for protesting discrimination under the Equal Protection Clause would be itself discrimination under the Equal Protection clause.

UPDATE: Thanks to Will Schendel at Alaska Employment Law, who provided his link to the parties' filings on rehearing. Counsel for plaintiffs (represented in part by Sam Bagenstos (Wash U.)) did, in fact, make this argument. It's on page 12 in footnote 2 of Ward's brief, if you're interested.

In any event, it's a fascinating case, and I recommend a close read.

MM

Tobin article to Notre Dame's Journal of Legislation

Congratulations to Harper Jean Tobin (Nat'l Senior Citizen's Law Center) whose article, The Genetic Information Nondiscrimination Act of 2008: A Case Study of the Need for Better Congressional Responses to Federalism Jurisprudence will be published in Volume 35, Issue 2 of the Journal of Legislation. From the (updated since our last post to include revisions based on the NAMUDNO case) 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 illustrated by recent proposed civil rights legislation addressing sexual orientation discrimination and racial profiling, as well as by the Voting Rights Act Reauthorization Act of 2006, which is currently before the Supreme Court. 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. 

MM

More Political Developments On EFCA

The political machinations surrounding the proposed Employee Free Choice Act keep getting more and more interesting.  Given the amount of news being released from key senators, it looks like EFCA is getting to the legislative front burner.  Steven Greenhouse at the New York Times has one of the more thorough takes on EFCA's current prospects.  As is no surprise, we've hit compromise stage, with proposals for early voting (in the same vein as a related proposal by Benjamin Sachs (Harvard)) or quicker elections recently coming to the fore. According to Greenhouse:

To win more support and prevent any intimidation, Senate Democrats are considering a proposal pushed by Senator Dianne Feinstein, the California Democrat. In a procedure similar to the early voting that precedes elections in many states, workers could sign cards and mail them to the National Labor Relations Board. If a majority mailed cards, the board would order the employer to recognize the union, as it now does when a majority of workers vote for a union through secret ballots. . . .

Tom Harkin of Iowa, the bill’s chief sponsor in the Senate with Edward M. Kennedy of Massachusetts, has held intense talks in recent days with several Democrats, including Ms. Feinstein and Arlen Specter of Pennsylvania, who recently left the Republican Party.  Mr. Harkin said, “There is one thing that won’t work, and that is the status quo.” He added, “Another key point is not to have these long drawn out elections that become an all-out war.” . . .

Several union leaders said they might support changes that would call for holding secret-ballot elections within a week or two of the labor board ordering an election, thereby preventing long, acrimonious campaigns. . . . [Union leaders also] said they would accept legislation with fast elections only if it included arbitration and tougher penalties for companies that break labor laws. . . .

Randel K. Johnson, the United States Chamber of Commerce’s vice president for labor affairs, criticized quick elections. . . . But Mr. Harkin said, “If the Chamber of Commerce says they’re opposed to everything, then they’re not going to be a player.” He cited a proposal by Mr. Specter that might help preserve the arbitration provisions. Under it, the arbitrator would choose between offers by an employer and by a union. “The last, best offer idea might have legs,” Mr. Harkin said.

Given the number of proposals circulating, it's hard to predict at this point what, if anything, may end up passing.  I find Harkin's final thought about an arbitrator picking among proposals to be particularly interesting.  The Postal Service has long used this form of arbitration, although it's not always pretty.  I'm not sure if that's the best way to go across the board, however, as the Postal Service has a long relationship with its unions which may make "pick a proposal" arbitration more feasible than it would be in other workplaces. [Apparently I was wrong about the Postal Service, which uses typical interest arbitration, with three member panels (one union, one employer, one neutral).  My question about the feasibility of "pick a proposal" arbitration still stands, however.]

Hat Tip: Benjamin Sachs, Justin Keith, and Dennis Walsh

-JH

Estreicher on Employee Representation in a Global Labor Market

Sam Estreicher's (NYU) article, "Think Global, Act Local': Employee Representation in a World of Global Labor and Product Market Competition" has just been published by the Virginia Law & Business Review (4 Va. L. & Bus. Rev. 81 (2009)).  From the SSRN abstract:

The decline of unionization rates in private companies, while at an especially low point below 10% in the U.S., is a worldwide phenomenon, hastened by the emergence of global labor and product market competition. The dilemma for public policy is that while strong unions can promote worker voice and economic participation, they do so in a manner that harms firm performance where all companies competing in the same product market are not subject to the same union standards. Global markets make it increasingly difficult for unions to pursue traditional redistributive goals, bringing to the fore an alternative model of workplace representation that emphasizes pursuit of objectives that do not undermine firm profits. Although global labor standards are often suggested as a means of improving the ability of U.S. workers to compete on a "level playing field" with workers in other countries, this approach is not likely to succeed if developing countries are to pursue their competitive advantage as lower-cost producers. Rather, the path for U.S. public policy should be two-pronged: (1) strengthening the protections for workers seeking collective representation, while (2) removing disincentives in current institutional arrangements that retard the evolution of unions as integrative bargaining agents.

I saw Sam present a version of this at a recent St. Louis University symposium and it was quite interesting, so check it out.

-JH

Call for Papers: Decent Work for Domestic Workers

Adelle Blackett (McGill) has issued a call for papers on Decent Work for Domestic Workers.  The papers will be published in the Canadian Journal of Women and the Law (Revue femmes et droit).  The deadline for submission of papers is September 30, 2009.  For a complete description of the call, follow the break.

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More than forty years after recognizing the urgency to address domestic workers’ employment conditions, the International Labour Organization (ILO) is now moving forward to adopt an international treaty (convention) on decent work for domestic workers by 2011.  Yet despite an abundance of crucial literature on the structural inequality faced by domestic workers, there is a dearth of scholarly reflection on the role of law.

The special issue seeks to contribute to the existing literature by reflecting on the facets of the care economy and the governance of paid work in the home.  Some of the thematic concerns include intersectionality and social location (race, caste, nationality, social status) in the regulation of domestic work; legal pluralism and the law of the home workplace; the regulatory continuity between valuing unpaid care work and equitably remuneration of care work in the home; social dialogue and citizenship and work as vehicles to promote domestic workers’ agency; and lessons from the regulation of domestic work for regulating the informal economy.  

The special issue also has a three-fold spatial scope.  First, it seeks to contribute to the important scholarship already underway on legal regulation in the Canadian context.  Second, it seeks to offer insights from comparative law, by considering regulatory challenges and innovations in other jurisdictions including but not limited to Australia, Brazil, China (Hong Kong), France, Ghana, India, Ireland, Italy, Lebanon, Norway, the Philippines, South Africa, the United Kingdom and Uruguay.   Third, it seeks to offer reflections on the value-added of international regulation, including insights into the future of the ILO’s focus on decent work for all as a basis for standard setting at the international level.  In light of the theme, we encourage interdisciplinary scholarship and contributions adopting diverse methodological approaches. 

Completed papers must be submitted by 30 September 2009.   We anticipate that submissions will be approximately 8 000 words, but will consider contributions that are longer or shorter.  Papers will be submitted to independent peer reviewers for publication consideration in volume 22:2 of the CJWL.   Contributions in French or English are encouraged. Questions are happily taken and early expressions of interest welcomed.

Chao Decries Inadequate Union Disclosure

Thanks to Alexander Leonard (Jackson Lewis) for sending us a link to former Labor Secretary Elaine Chao's article in yesterday's Wall Street Journal decrying Obama’s policy to stop using the LM-30 for union LMDRA compliance.  Somehow, she manages to weave in an argument against the EFCA: the EFCA is misguided because employees don't want unions anyway.  She cites a poll that purportedly finds that 81% of non-union members don’t want a union.  But with a union density rate of 7%, it seems as though a lot of American workers want a union but can't get one.

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What Every Office Needs

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Here's how employees at the Electric Works building in Sheffield, England get from the third to the ground floors.  But it turns out the slide was paid for by taxpayers via a regional development fund, at a cost of $137,000.  On top of that, the occupancy rate of the new building is only 20%.  No queues!

Photo and story courtesy MailOnline, via PJH Law.

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Transgender Employment Consulting

I received today an email notice from Jillian Weiss, Ph.D. about two webinars she is providing for government and academic employers (5/27/09 noon e.s.t. government, 6/6/09 noon e.s.t. academic) on "the types of questions that HR professionals face when there is a transgender employee in the workplace.  These include questions about legal name and gender changes, bathroom and dressing room usage, insurance coverage, federal, state and local laws, internal policy changes, and risk management."

I think the mere fact that Dr. Weiss has been able to create a consultancy for employers on transgender issues is by itself an indication of how far we've come on this issue in recent years.  Not there yet, of course, but much closer.

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Boston Globe Reaches Settlement With Union

Faced with a threat of closure by owner The New York Times Co., the Boston Globe has reached a tentative agreement with the largest union representing its employees.  Six of the seven unions at the Globe had reached an agreement, but the until Wednesday, the Newspaper Guild had held out. 

The parties are not releasing details of the agreement yet, but there had been a target of about $20 million in needed cuts.  Moreover, early reports indicate that, in addition to wage cuts, lifetime job guarantees for employees have likely been dropped.

-JH

Recession Hiring

Steven Greenhouse (New York Times) has an article on an relatively untold story:  hiring during the recession.  As Greenhouse describes, there is still a lot of hiring that occurs even when the overall employment numbers look bad.  One reason is that while some industries and companies are hurting, others are doing much better.  Even more important, however, is the fact that the overall employment numbers are very blunt instruments. 

The unemployment rate, for example, has certainly declined significantly the past year.  Yet, that number merely gives a summary view of the number of people who want work but can't find it.  The story it doesn't tell is a fluid job market that sees a lot of turnover, even when there is no change in the unemployment rate.  That we're in a recession doesn't change this reality.  As an example, Greenhouse notes that in February, 4.8 million workers left or loss their jobs while 4.3 million were hired that same month.  Thus, employment declined by a half-million that month (and the overall rate therefore dropped a bit), but that figure ignores the 4.3 million hires.  A good reminder to be aware of the limitations of data.

Hat Tip:  Paul Secunda

-JH

Confirmation Hearings for Harris and Smith

Tomorrow (Thursday, May 7), the Senate Health, Education, Labor, and Pensions Committee will hold a hearing on President Obama's nominations of Seth Harris to serve as Deputy Secretary of Labor and Patricia Smith to serve as Solicitor of Labor.   The hearing will be at 10:00 am in Room 430 of the Dirksen Senate Office Building, and the public is welcome to attend.  You can also watch a video stream of the proceedings on the Senate HELP Committee's web site.

Good luck to both.

-JH

Congratulations to Workplace Fairness Blog.  We mentioned a couple of weeks ago that it was up for a Webby, and it won.  Check it out.

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Call for Proposals: The Economic Crisis and Conflict Resolution

From Jean Sternlight and Ann McGinley:

The Saltman Center for Conflict Resolution at the Boyd School of Law, UNLV, together with a consortium of local practitioners, is putting together a conference for February 12-13, 2010 that is tentatively entitled:  "The Economic Crisis and Conflict Resolution."  Our goal is to bring together people who have great ideas for how to use conflict  resolution tools to deal with aspects of our ongoing economic crisis.  Some likely topics would include foreclosure and bankruptcy mediation.  We are also looking for speakers on other subjects relating to the crisis, e.g. how to use conflict resolution tools to deal with layoffs, how to design dispute resolution systems when money is short, or how to use dispute resolution to help with new living arrangements. This list is not meant to be an exclusive, but rather to spark your creative juices.

Some speakers will be asked to write articles (symposium length) for inclusion in a symposium issue of the Nevada Law Journal.  The deadline for submitting such articles will be June 15, 2010.  Alternatively, some speakers may prefer to give a talk but not write an article.  Or, some speakers may prefer simply to comment on others' presentations.  

We have a  budget to support this event, so we will be able to pay costs of travel, accommodations and food for some speakers.  However, we hope that additional speakers can pay some or all of their own costs.

If you are interested in participating in this conference as a speaker or commentator please fill out the downloadable form and send it to me no later than May 18, 2009.   You will see that the form does not require a lot of information, so I hope this deadline won't be problematic.  I want to be able to notify folks of their selection by the end of May.  But, if you desperately need more time, give me a call.  Also, feel free to write/call for more information.  I hope to  hear from many of you.   Also, feel free to forward this request to others, whether academics or not, who you think may be interested.

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Cunningham-Parmeter on the Rights of Undocumented Workers

Keith Cunningham-Parmeter has just posted on SSRN his article (forthcoming American U. L. Rev.) Redefining the Rights of Undocumented Workers.  Here's the abstract:

Should a nation extend legal rights to those who enter the country illegally? The Supreme Court recently addressed this question when it held that unauthorized immigrants who are fired illegally for unionizing cannot recover monetary remedies. This has led to a significant decline in employment protections for unauthorized immigrants beyond the unionized sector. For example, some courts now question whether unauthorized immigrants can receive full remedies for sexual harassment, workplace discrimination, or on-the-job injuries.

Scholars have criticized these losses but have yet to formulate a coherent framework for evaluating the employment rights of unauthorized immigrants. This article does so by distilling and applying several core principles at issue when employment laws conflict with immigration laws. I begin by explaining how the text and purpose of selected immigration and employment statutes show that Congress never intended to restrict unauthorized immigrants’ employment rights. Remedial restrictions not only harm the workplace protections at issue, they fail to discourage illegal immigration. Thus, neither legislative intent nor national immigration goals justify limiting the workplace remedies available to unauthorized immigrants.

Although the future rights of unauthorized workers will turn partly on the issues of statutory purpose and immigration policy discussed in the early sections of the article, equally important are the consequences of diminished rights. Accordingly, I conclude the article by explaining why restricting workplace protections based on status harms citizens as well as immigrants. I contend that employment protections are “rights of partial inclusion” that reflect a distinctive sphere - the workplace - where unauthorized immigrants should be placed on par with citizens in pursuing collective interests. In contrast to arguments that favor limiting resources to lawful residents, partial inclusion explains how employment protections can effectively preserve national identity while simultaneously enhancing unauthorized immigrants’ incentives for social investment. In doing so, partial inclusion furthers the community’s self-definition, while providing unauthorized immigrants with a sense of belonging in a world increasingly focused on their exclusion.

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NYU Annual Conference on Labor

NYU's Center for Labor and Employment Law has announced the agenda for its 62nd Annual Conference on Labor, to be held at NYU School of Law on June 4-5, 2009.  The conference theme this year is "Labor and Employment Law Initiatives and Proposals in the Obama Administration" and the lineup of speakers look great.

Check out the conference website for the agenda and registration form.

-JH

Kalish Twitters

Jerry Kalish, of Retirement Plan Blog (see his excellent post from yesterday about how Staples is using free tax preparation to increase 401k enrollment 29% and improve employee retention 32%), writes about workplace Twittering over at BizBox.  He points out that "[a]nswering the question 'What are you doing now?' can sometimes cause problems in the workplace for employers whose employees are using Twitter to do so."  He also predicts that Skype will be the next technology to get used and abused in the workplace. 

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Another Entry For The Bad Boss Files

I don't know if the following actually occurred or it's just an employer blowing off some political steam (the April Fool's Day date is a hint), but it's going to give me a new hypo for my employment law class.  The employer is Dillinger & Kovach, an advertising and marketing firm that seems to specialize in work for staffing agencies.  In one of the firm's blog postings, "The Boss" describes the need to make layoffs and how people will be chosen.  I'll quote the entire piece:

As the CEO of this organization, I have resigned myself to the fact that Barrack [sic] Obama is our President and that our taxes and government fees will increase in a BIG way.

To compensate for these increases, our prices would have to increase by about 10%.

But since we cannot increase our prices right now due to the dismal state of the economy, we will have to lay off six of our employees instead.

This has really been bothering me, since I believe we are family here and I didn't know how to choose who would have to go.

So, this is what I did. I walked through our parking lot and found six 'Obama' bumper stickers on our employees' cars and have decided these folks will be the ones to let go.

I can't think of a more fair way to approach this problem. They voted for change, I gave it to them.

I will see the rest of you at the annual company picnic.

The Boss

Priceless.

Hat Tip:  Eric Fink

-JH