January 10, 2009
Orly Lobel Earns Tenure
Congratulations to Orly Lobel, who has been approved by the faculty at San Diego for tenure.
Orly writes and teaches in the areas of employment law, administrative law, legal theory, torts, consumer law and trade secrets. Before teaching at San Diego, she taught at Yale Law School and served as a fellow at the Harvard University Center for Ethics and the Professions, the Kennedy School of Government's Hauser Center for Non-Profit Research, and the Weatherhead Center for International Affairs. A graduate of Tel Aviv University Law School, she clerked on the Israeli Supreme Court and did her graduate studies at Harvard Law School. Her current research focuses on new models of law and governance in the context of the new economy, the labor market, privatization, and new public management techniques.
Orly is a rigorous and prolific scholar. Some of her recent scholarship includes The Four Pillars of Work Law (Michigan Law Review), The Paradox of 'Extra-Legal' Activism: Critical Legal Consciousness and Transformative Politics (Harvard Law Review), and Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations (California Law Review).
Few scholars can match the breadth and depth of Orly's scholarship, and she is a fantastic colleague. Congratulations, Orly, on this well-deserved accomplishment!
SSRN Top-10 List of Recent Employment & Labor Downloads
- David C. Yamada, Workplace Bullying and Ethical Leadership (545).
- Anup K. Basu, Alistair Byrne, & Michael E. Drew, Dynamic Lifecycle Strategies for Target Date Retirement Funds (169).
- Francine J. Lipman (photo above), The Undocumented Immigrant Tax (163).
- David C. Yamada, Human Dignity and American Employment Law (139).
- Edward A. Zelinsky, Employer Mandates and ERISA Preemption: A Critique of Golden Gate Restaurant Association v. San Francisco (110).
- Katherine Van Wezel Stone, John R. Commons and the Origins of Legal Realism; or, the Other Tragedy of the Commons (105).
- Cass R. Sunstein, Is OSHA Unconstitutional? (97).
- Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (85).
- J. Robert Brown, Returning Fairness to Executive Compensation (83).
- Brian D. Galle, Do Hidden Taxes Increase Welfare? (75).
January 9, 2009
AALS Happenings: Section on Labor Relations and Employment Law
Michael Selmi (GWU) presided over this afternoon's panel At the Border and Beyond: California and the Evolving Workplace. Ruth Milkman (UCLA-Sociology) discussed the 2006 immigrant rights protests, their antecedents, and their current implications. Juliet Stumpf (Lewis & Clark) described how employment law has played a leading role in the domestication of immigration law. Catherine Fisk (U.C.-Irvine) presented on the attribution of creative work as a paradigm for ownership of workplace knowledge.
AALS Happenings: Section on Employment Discrimination Law
Meilssa Hart, timekeeper extraordinaire, presided over today's panel entitled If It is Broken, Then Fix It: Needed Reforms to Employment Discrimination Law. Minna Kotkin (Brooklyn) spoke on how discrimination claimants alleging multiple categories of discrimination are less likely to prevail than claimants alleging a single category. Joe Seiner (South Carolina) spoke on how courts are using Twombley pleading standards to dismiss employment discrimination cases that previously would have survived. Roberto Corrada (Denver) proposed a unified standard to deal with religious cases involving both bias and accommodation issues. Finally, Deborah Widiss (Brooklyn) described how courts often narrowly construe Congressional overrides, using Gilbert and the PDA as an example.
House Passes Ledbetter Fair Pay Act and Paycheck Fairness Act
OK--Jeff and I posted the news on the Lilly Ledbetter Fair Pay Act, which defines when the injury of pay discrimination occurs, at the same time. I'm posting anyway to add that the House also passed complementary legislation, the Paycheck Fairness Act, which strengthens enforcement and remedies of current wage discrimination laws. If these bills pass the Senate, Obama has said he will sign them into law (he was a cosponsor of both).
House Passes Ledbetter Bill
The AP is reporting that the House, as expected, has just passed the Lilly Ledbetter Fair Pay Act. According to other sources, the vote was 225-199. Next stop, the Senate.
Hat Tip: Susan Harthill
SCOTUS to Review Firefighters' Claim of Discrimination
The Supreme Court granted cert in Ricci v. DeStefano. The question: Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.
I've blogged before on the case, most recently here, and I have a lot more thinking and reading to do to provide further commentary. I actually asked whether the Court should take this case on my employment law final, and my students' analyses were very interesting. We'll all have to stay tuned!.
December Unemployment Numbers
You knew it was coming, the December unemployment numbers are out and they're as bad as expected. According to the New York Times:
With the recession in full swing, the nation’s employers shed 524,000 jobs in December, the government reported Friday, and a rapidly deteriorating economy promised more significant losses in the months ahead. December’s job losses brought the total for 2008 to 2.6 million, spanning a recession that started 12 months ago.
The unemployment rate jumped to 7.2 percent in December from 6.8 percent in November and 5 percent last April, when the recession was four months old and just beginning to bite. More than 11 million Americans are now unemployed, and their growing ranks seem likely to put pressure on President-elect Barack Obama and Congress to act quickly on a stimulus package that mixes tax cuts and public spending. . . .
The 7.2 percent was the highest unemployment rate since January 1993, when the country was still shaking off a jobless recovery from the 1990-91 recession. The loss in total jobs for 2008 was the largest since 1945.
The toll of job losses cut across every sector. Nearly 800,000 manufacturing jobs were lost in 2008, and 630,000 construction jobs disappeared as home-building slowed. Jobs dried up in the financial sector, in publishing houses and trucking companies, department stores and hotels. . . .
Just in October and November, 956,000 jobs disappeared (the November loss alone was 584,000, revised from 533,000), the Bureau of Labor Statistics reported. That was nearly 40 percent of the jobs that were eliminated since the recession began in December 2007. . . .
But for all the job losses, the current recession, now in its 14th month, falls short of the mid-’70s and early ’80s recessions, at least so far. The total number of men and women at work declined 2.7 percent in the 1974-75 recession and by 3.1 percent in 1981-82. In the current recession, the loss through November was under 2 percent.
ABA Panel on New FMLA Regs
BNA's Daily Labor Report (subscription required) has a report on a panel sponsored by the ABA's Labor and Employment Law Section on the new FMLA regulations that will go into effect next week. Panelists stressed the new regs' improved forms and emphasis on communications between employers and employees. Other changes include clarification of issues related to employer penalties following the Supreme Court's Ragsdale case, waiver, and the new law providing family of wounded veterans to take six months unpaid leave to help with the vet's rehab and family of soldiers recently moved to active duty to take leave to manage their affairs.
The new regs cover a lot of ground, so expect some litigation trying to work out some of the new issues.
Secunda, Signing Off
It is with somewhat mixed feelings that I have determined to cease blogging at the Workplace Prof Blog. Considerations of spending more time with my family and having more time to write have led me to this difficult decision.
Over the three years that I have blogged here with Rick and then Jeff and Marcia, I have learned so much from the various individuals who have sent me interesting articles and stories. It has also been my pleasure to keep the labor and employment law community up-to-date on the all the happenings in our community and around the world. I hope that I have been able to contribute just a little bit to the formation of a more cohesive labor and employment law professor community.
I look forward to seeing many of you at the various conferences and colloquiums in the coming days and years. I will also try to contribute a guest post once in a while on this site.
Thanks to all the blog readers and my fabulous co-bloggers for all the great times.
EBRI Re-Launches Website
Jerry Kalish over at Retirement Plan Blog points out that the independent, non-partisan research group Employee Benefit Research Institute (EBRI) has re-launched and updated its website. The upshot is that it is now much easier to access its huge volume of empirical research.
January 8, 2009
In response to the Obama transition team, union leaders have decided that a united front is better than the split that resulted with the development of Change to Win. Stephen Greenhouse of the New York Times reports that the unions may even formally reunify:
The presidents of 12 of the nation’s largest labor unions called Wednesday for reuniting the American labor movement, which split apart three and a half years ago when seven unions left the A.F.L.-C.I.O. and formed a rival federation. The union presidents issued their joint call after the transition team for President-elect Barack Obama signaled that it would prefer dealing with a united movement, rather than a fractured one that often had two competing voices. . . . The leaders are hoping, by April 15, to approve a plan to reunify, one union official said. But some officials said they might fail to reach agreement. . . .
To bring about reunification, several labor leaders have called for revamping and modernizing the A.F.L.-C.I.O., traditionally the nation’s main federation, currently with 56 member unions. But several labor leaders have called for replacing the A.F.L.-C.I.O. with a new, more dynamic group. There was general agreement that any future federation should focus on political and legislative matters, while also serving to encourage individual unions to do more to organize workers.
The leaders of several breakaway unions have called for changing the name of the A.F.L.-C.I.O. because they had vowed never to return to the same federation. But many A.F.L.-C.I.O. officials argue that it would be silly to alter the name of such a well-known organization and replace it with a name that few Americans are familiar with.
Greenhouse also discusses possible heads for the new unified union, whatever it ends up being called. This sounds like it might happen, which is a pretty dramatic reversal from the Change to Win split. Yet another big change brought about by Obama's election.
Hope for the FLRA?
As most readers are aware, the FLRA is the oft-forgotten cousin of the NLRB. The agency has had a particularly tough time during the current administration, with morale low and serious underfunding. The Washington Post, however, has an article that gives some hope for the agency from what may be an unexpected source--its new Republican Chairman:
Thomas Beck runs a tiny agency, but he has a huge job. As the new chairman of the Federal Labor Relations Authority, Beck's task is to reinvigorate an organization that had become almost useless. . . .
When Beck was sworn in as chairman in October, he found an agency with a backlog of some 400 cases. Until he took office, only one of three seats on the authority was filled, rendering it impotent for months. The agency has operated without a general counsel since March, which means the agency cannot prosecute unfair-labor-practices cases. . . . Staffers had differing views on the authority's effectiveness, he said. Yet, as a group, they rated it dead last among small agencies in the 2007 "Best Places to Work in the Federal Government" rankings published by the Partnership for Public Service. Morale was in the tank. . . .
The backlog of cases grew as staffing levels dropped. Since 2003, the number of employees fell by 35 percent, to 120. The agency's budget declined 19 percent, to $22.7 million, during that period. . . . Curiously, the previous management did not spend all the money it was appropriated, according to Beck. Between $1 million and $1.5 million of agency funding was returned to the Treasury each year since fiscal 2003, until last year. . . .
Beck is trying to . . . reduce the backlog, . . . he and Pope "have been working to identify cases where we can reach agreement as to the ultimate disposition, even if we sometimes disagree about why that disposition is the correct one." That has resulted, he added, in 21 decisions from Oct. 16 to Dec. 31, "the greatest number of decisions issued in any quarter since the third quarter of 2006."
He's also hiring. One additional lawyer for the case-processing staff has been added, and three more should come on board soon. That would represent a 36 percent increase. Beck also recruited a human resources specialist. Previously the entire HR function was contracted out.
Beck expressed interest in continuing on the FLRA even if (when?) Obama puts a Democrat in as chairperson. It sounds likely that he may be able to do that, as even the NTEU federal union "has no beef with him."
Hat Tip: Dennis Walsh
Thomas on The Fallacy of Dispositive Procedure
[D]ispositive procedure is fatally flawed. The Supreme Court has held that a judge can dismiss a case before, during, or after trial if he decides a reasonable jury could not find for the plaintiff. The Court has also held that a judge cannot dismiss a case based on his own view of the sufficiency of the evidence. I contend, however, that judges do exactly that. Judges dismiss cases based simply on their own views of the evidence, not based on how a reasonable jury could view the evidence. This phenomenon can be seen in the decisions dismissing cases. Judges describe how they perceive the evidence, interchangeably use the terminology of reasonable jury, reasonable juror, rational juror, and rational fact-finder among others although very different in meaning, and indeed, disagree among themselves on what the evidence shows. I further argue that the reasonable jury standard involves several layers of legal fiction. Those fictions include the current substitution of a judge's views for a reasonable jury's views, the speculative determination by a judge of whether a reasonable jury could find for the plaintiff, the assumption that disagreement among judges on the sufficiency of the evidence does not show a reasonable jury could find for the plaintiff, and the assumption that disagreement among judges on the sufficiency of the evidence demonstrates unreasonableness on the part of some of the judges. These legal fictions, which underlie the reasonable jury standard, show that the basis of dispositive procedure is fatally flawed.
I agree. I see this consistently in discrimination cases, where courts often grant summary judgment notwithstanding extant (though sometimes weak) evidence of discrimination; and in i.i.e.d. cases, where the legal standard amounts to whether the conduct is "awful enough" to justify liability. Courts frequently say "no evidence" when what they really mean is "not enough evidence for me." That's a problem given that most federal judges are older, white, male, life-tenured, relatively well-paid, and politically conservative.
New Studies on Timing and Extent of Maternity Leave Call for Expanded Access to Paid Leave
The current issue of Women's Health Issues has published an important study about the effects of paid leave and the timing of that leave on the health of women and their babies. The study, entitled Maternity Leave in the Ninth Month of Pregnancy and Birth Outcomes among Working Women found that women who took leave beginning in the 35th week of pregnancy were four times more likely to avoid a C-section birth than women who worked right up until going into labor. A second study, published in this month's issue of the journal, Pediatrics, and entitled Juggling Work and Breastfeeding: Effects of Breastfeeding and Occupational Characteristics, found that the longer the leave after birth (up to and beyond 12 weeks), the substantially greater likelihood that the woman would have established breastfeeding.
From the press release,
"In the public health field, we'd like to decrease the rate of C-sections (cesarean deliveries) and increase the rate of breastfeeding," said [Sylvia] Guendelman[, principal author of the studies and Professor of Maternal and Child Health at UC Berkeley School of Public Health]. "C-sections are really a costly procedure, leading to extended hospital stays and increased risks of complications from surgery, as well as longer recovery times for the mother. For babies, it is known that breastfeeding protects them from infection and may decrease the risk of SIDS (Sudden Infant Death Syndrome), allergies and obesity. What we're trying to say here is that taking maternity leave may make good health sense, as well as good economic sense."
. . .
According to the U.S. Census, among working women who had their first birth between 2001 and 2003, only 28 percent took leave from their jobs before giving birth while an additional 22 percent quit their jobs. Twenty-six percent of women took no leave before birth.
"We don't have a culture in the United States of taking rest before the birth of a child because there is an assumption that the real work comes after the baby is born," said Guendelman. "People forget that mothers need restoration before delivery. In other cultures, including Latino and Asian societies, women are really expected to rest in preparation for this major life event."
The authors added that financial need may also deter women from taking leave in the last month of pregnancy. Only five states - California, Hawaii, New Jersey, New York, Rhode Island - and the territory of Puerto Rico offer some form of paid pregnancy leave, and none offer full replacement of the woman's salary.
The American Association of Pediatrics suggests that increased breastfeading could decrease annual health costs in the U.S. by $3.6 billion and decreasing parental employee absenteeism. The AAP also suggests there might be a smaller environmental burden for disposal of formula cans and bottles and energy demands to produce and transport formula, but it seems those benefits might be offset for working women who express milk to be fed to their children by other caregivers, particularly those who use hospital grade electric breast pumps, which are said to be substantially more likely than other methods to ensure continued sufficient milk production.
Regardless of that, though, as the study authors noted, even just having leave benefits available from an employer is not enough unless the leave can be used. They suggested that employers should do more to signal that the use of maternity leave is perfectly acceptable and to make the leave economically feasible to take. "These new studies suggest that making it feasible for more working mothers to take maternity leave both before and after birth is a smart investment," said Guendelman.
January 7, 2009
Company's Deposition Question Violates NLRA
The NLRB recently issued a decision that applied its Guess, Inc. rule, which deals with an employer's questions to an employee during a deposition. In Chinese Daily News, several employees who were open supporters of a CWA organizing drive filed a wage and hour class action against their employer. The employer challenged the employees' fitness as class representatives, arguing that the suit was motivated to advance the union organizing. Following class certification, the employer deposed the employees and asked several questions related to their union activities, including whether they voted for the union in a recent election. Reversing an ALJ decision, the Board found that the voting question was unlawful under its Guess, Inc. rule:
Under that test, [we consider] whether the questioning is relevant to the lawsuit, and, if so, whether it
has an illegal objective. If the questioning is found to be relevant and without an illegal objective, the Board must then consider whether the Respondent’s need for the information outweighs employees’ Section 7 rights. . . .
We begin by assuming arguendo that the Respondent’s questioning of Wei whether he voted for the Union was relevant to the litigation . . . . We also find, consistent with the judge’s decision below, that the Respondent’s questioning did not have an illegal objective.
[However, we] find, contrary to the judge, that Wei’s interest in maintaining the confidentiality of his vote in the election was substantial. The Board has recognized that “the secrecy of balloting . . . is a hallmark of our election procedures.” The Board has also consistently recognized that an employer’s interrogation of an employee concerning how that employee intends to vote, or has voted, in a secret-ballot election violates the Act, notwithstanding the employee’s open advocacy for the Union. Thus, even though Wei was an open union supporter, he retained a substantial Section 7 interest in preserving the confidentiality of his vote.
We next find that the Respondent has not shown that its need for the information concerning Wei’s vote justified the infringement on his Section . . . . Although we assume arguendo that Wei’s support for the Union may have been broadly relevant to the Respondent’s defenses, it is nevertheless clear that the Respondent has not demonstrated that its ability to establish how Wei voted in the election substantially furthers either of those two defenses. The Respondent does not dispute the fact that it had otherwise established that Wei, Sun, and Wang were open and active union supporters. With that established, it is difficult to see—nor does the Respondent explain—how asking Wei about his confidential vote would appreciably further the Respondent’s effort to disqualify Wei. Thus, we find Wei’s substantial interest
in maintaining the confidentiality of his vote outweighs the Respondent’s need for that information.
A good reminder that the NLRA can be implicated in disputes that are primarily about a different area. The case also adds to the chorus of statements extolling the importance of secret ballots that we'll be hearing when the EFCA issue officially hits the fan.
Hat Tip: Dennis Walsh
Ledbetter Bill Revived and On Fast Track
We have written numerous times about the need for a Ledbetter bill to overturn the Supreme Court decision in the Ledbetter case concerning the statute of limitations for pay discrimination cases. Recall that the Court ruled that pay discrimination cases are treated as discrete act of discrimination cases and that a claim must be filed within the 180/300 day statute of limitations from the day the employee receives their paycheck. This is an absurd situation as many times employees do not know of a discriminatory pattern until there has been numerous pay periods with discriminatory pay decisions.
Now comes word that as early as today, Congress will have hearings on the passage of a Ledbetter Fair Pay Bill which will allow more flexibility for such pay discrimination claims. More specifically, the Ledbetter Fair Pay Act legislation would amend all of the employment discrimination law to provide that in effect only one discriminatory pay check with have to fall into the statutory period for such claims - much like sexual harassment claims under the Morgan case.
Related legislation is also expected to amend the Equal Pay Act to enhance remedies for sex-based pay disparities.
While the legislation is expected to pass the House like it did last year, the challenge will come in the Senate with the threat of another Republican filibuster. However, this time Democrats seems to have the votes to overcome such a threat. A recent in-depth story on Ledbetter can be found in the NYT from a couple of days ago.
Punitive Damages Available under OSHA Train Rules
Apparently there has been a revision to 49 U.S.C. §20109, dealing with employee protections under the Federal Rail Safety Act (FRSA). The provision provides protections to whistle blowers who provide information about unsafe conditions on the railroads. Affected employees may bring claims to OSHA.
One of the first cases happened in Seattle (via the Train Law Blog):
Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.
Well, my curiosity was piqued. I managed to get my hands on OSHA's Findings and Final Investigation Report, and the details are very telling.
The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak's "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.
The employee filed a FRSA retaliation complaint, and OSHA Whistleblower's office investigated. OSHA found Amtrak's managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.
Interestingly, the Train Law Blog reports that it is fairly common for injuries of the job for railroad workers to turn into disciplinary actions against them: The Blog notes that, "the fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries."
Hat Tip: Joseph Coleman
January 6, 2009
Levinson Named Assistant Professor at Louisville/Brandeis
Congratulations to Ariana Levinson, who has been appointed an Assistant Professor at Louisville/Brandeis School of Law. She has been teaching there for the past academic year as a Visiting Assistant Professor. She'll be teaching contracts, labor law, and some combination of other employment/arbitration courses.
Prior to teaching at Louisville Law, Levinson taught at USC School of Law and at UCLA School of Law. Before that, she worked as a fellow for the AFL-CIO's Legal Department, practiced labor law for Holguin & Garfield in Los Angelesand, and clerked for the Honorable John G. Davies (United States District Court, Central District of California) and for the Honorable Myra C. Selby (Supreme Court of Indiana).
Levinson graduated magna cum laude from the University of Michigan Law School, where she was on the Law Review. She also attended Michigan for her undergraduate degree. She is admitted to practice in Indiana and California.
Resurgence in Black Lung Cases
Carole Bass writes to tell us of an apparent resurgence in black lung disease among U.S. coal miners. Though the cause is not certain, a couple of theories have been proposed. One is that miners are working more hours than they did 20 years ago -- 12- and 16-hour shifts, and 60-hour weeks. The second is that most of the coal that's left in Appalachia is in "thin seams" -- 28 inches or less -- and mining thin-seam coal requires taking up a lot of rock with the coal. That rock contains silica, which can be worse for a miner's lungs than coal.
For more, see Carole Bass, Why Is Black Lung Back?