Friday, May 15, 2009
On Monday Sen. Kennedy and Rep. DeLauro will introduce the Healthy Families Act. The measure would apply to employers with 15 or more workers and would give covered employees one paid sick leave hour for every 30 hours work--up to seven paid sick days a year. The sick leave could be used for their own illness, or that of a parent, spouse, blood relative, or other person with the equivalent of a family relationship. Passage of the bill would mean that the U.S. would no longer be the only industrialized country in the world without some form of paid sick leave.
BNA's Daily Labor Report (subscription required) is reporting on recent comments by President Obama, who reiterated his support for EFCA. Perhaps more important, he was upfront about needed some type of compromise to have the bill passed, as long as it kept the core of EFCA, which he said was to "make it easier for people who want to form a union to at least get a vote and have an even playing field." That seems to be a signal that the card check provision may be gone, but the rest of EFCA--in addition, perhaps to a speedy election requirement or equal access rules--may pass. Sen. Specter was noted as saying that the chances of compromise were "pretty good."
Hat Tip: Paul Secunda
The Fifth Circuit issued an interesting decision in late April on the First Amendment rights of elected officials. In Rangra v. Brown, the court had to decide
The plaintiffs were elected city council members who had used private e-mails to discuss whether to call a council meeting to consider a public contract matter. The local district attorney indicted them for violating criminal provisions of Texas's Open Meetings Act, which prohibit the discussion of public matters by a quorum of public officials when outside of an open meeting.The D.A. dismissed the indictments without prejudice after a few months. One of the side issues here was standing, since those charges had been dismissed (I still have federal courts on the brain), but since there was still a credible threat of future prosecution that caused the plaintiffs to self-censor, the plaintiffs had the necessary injury for standing.
Because only public matters were off limits for discussion, the court found this to be a content regulation to which strict scrutiny would apply and also found that Garcetti was not applicable. The court relied primarily on campaign speech cases, which, in the Supreme Court's language, emphasize that "[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance." The court also relied on one of its prior cases, stating,
This case could easily have gone the other way, and in fact had in the district court, but I think this is a sensible line to draw. Moreover, this reasoning would apply to other kinds of jobs (like professors) where the role of the state official is to speak on controversial issues. Taken to an extreme, it might seriously curtail the reach of Garcetti for at least some whistleblowers--where the public has a strong interest in rooting out lawbreaking or corruption.
On these facts, the government conduct may very well still pass strict scrutiny, but the principle laid down by the Fifth Circuit is an important development.
The Second Circuit has recently remanded a case to the NLRB to reconsider a perceived conflict in Section 8(g) and the rule that allows employers to enforce neutral policies ("plant rule"). In Special Touch a union representing home health care aides went on strike, giving the employer the 10 days notice required by Section 8(g). The employer called the 1,400 employees scheduled to work the day of the strike to inquire whether the were participating; 75 said they were going to be on strike that day and 48 never responded (46 of those offered unconditionally to return to work the next day and the other two returned after 3 days). The employer immediately reinstated the 75 strikers, but took up to several months to reinstate the 48, stating that they had violated the call-in policy.
The NLRB found that the employer's refusal to reinstate violated Section 8(a)(3). The court, however, remanded--stating that the Board should consider the intersection of the plant rule and Section 8(g). Basically, the issue is whether a union's compliance with 8(g) (which only applies to unions, not employees) made the employer's call-in attempts superfluous and, therefore, its discipline of employees not complying with the rule unlawful. The court noted that in one of its earlier cases (Montefiore), it had dicta suggesting that an employer should check with employees to see if they would participate in a strike. Ultimately, the court held that the Board should balance the existence of 8(g) notice with the employer's need for more clarity, looking in particular at:
As a former Board appellate attorney, I'm all for a court acknowledging that it's the Board's role to tackle issues in the first instance. On the other hand, the added delay isn't good news for the employees involved.
Hat Tip: Dennis Walsh
David began his career in legal education at Berkeley as director of the employment discrimination clinic. At Golden Gate, he has served as a visiting professor, associate professor, professor, associate dean for academic affairs, associate dean for faculty development, and director of the GGU comparative law program in Paris. He specializes in Specializes in discrimination law, civil trial law, and civil rights history.
Hat tip: Paul Secunda.
CACI International contracted with the U.S. government to provide employees who would screen and interrogate detainees at Abu Ghraib. A group of former detainees and their dependents have sued CACI for torture. St. Paul Fire & Marine Insurance Company underwrote a Commercian General Liability insurance policy for CACI. St. Paul refused to defend CACI in the detainees' torture case, and CACI sued St. Paul. The Fourth Circuit yesterday held that St. Paul has no duty to defend. See CACI v. St. Paul. Hat tip: Jonathan Harkavy.
Rachel Arnow-Richman (Fordham/Denver) offers this critique of the American Law Institute's proposed Restatement of Employment Law, Chapter 2:
Reviewing Chapter 2 in particular leads to a further set of questions about the goals of the draft with respect to contract law. While opinions differ about the purpose of a Restatement generally, one way to justify such a project is as a means of elucidating (or gently imposing) a unifying theory on what appears, as a result of the ad hoc and jurisdictionally specific nature of judicial decision-making, as a disjointed body of opinions. The law of employment contracts is arguably ripe for such an undertaking. In assessing parties’ rights and obligations, some courts, in some contexts, veer toward contract formalism, emphasizing issues of assent, consideration, and narrowly defined contract defenses. Other courts in the same contexts (or the same courts in different contexts) place greater emphasis on bargaining disparities, relational norms, and policy considerations, often bending contract rules to achieve larger goals. Thus, a Restatement of employment law could comprise a meaningful contribution to the field if it were to expose or suggest a governing theory of employment contracts.
This draft fails to achieve or even tackle that goal. A cursory examination of the Restatement’s proposed list of chapters reveals that the project reifies the fragmented nature of current law. Chapter 2 purports to cover the topic of termination; other contractual matters, such as covenants not to compete, agreements to arbitrate, and “compensation and other terms of employment” are spun off in different chapters. An effort to clarify or integrate employment contract law would take as its starting point contract concepts (formation, modification, remedies) rather than particular contract terms (dispute resolution procedures, grounds for termination, post-employment obligations). The latter subjects, including the notion of employment at will, would be treated as part and parcel of the question of how terms of employment relationships are set.
Instead, the draft’s organization reflects the balkanized approach to the use of contract principles exhibited in current employment jurisprudence. Not only does this preclude any possibility that the Restatement will unify existing law, it results in a document unable to account for how various contract terms and relational dynamics interact and influence one another . . . .
Thursday, May 14, 2009
Today, EEOC attorneys are deposing New York mayor, Michael Bloomberg ins a class action suit alleging pregnancy discrimination against his media company. The actions were alleged to have taken place after Bloomberg became mayor, but the plaintiffs argue that he created the culture of discrimination that led to the bias. As reported by the New York Times:
In its latest complaint, filed on March 31, the Equal Employment Opportunity Commission writes:
“Michael Bloomberg is responsible for the creation of the systemic, top-down culture of discrimination which exists within Bloomberg, and Bloomberg has been sued in the past for complaints relating directly to Michael Bloomberg by several female executives who have alleged in their lawsuits that a hostile environment exists for women at Bloomberg.”
In the past, the company has vigorously denied such claims as just a “publicity stunt.” The company has also noted that the number of plaintiffs [80 female employees]— while nothing to be sneezed at — pales in comparison to its work force of more than 10,000 employees in 126 offices around the world.
There are no signs that a settlement is imminent. Mr. Bloomberg’s lawyers, in fact, have been beefing up their ranks in recent months, hiring a big law firm, Jones Day, to assist with the overall strategy. The discovery process is expected to wrap up at the end of June, and a trial could commence in the early part of 2010.
See the full article for more details, including on a couple of the named plaintiffs.
Wednesday, May 13, 2009
In a recent issue of the journal Strategic Change, authors Nada Kakabadse (Northampton Business School) , Gayle Porter (Rutgers School of Business), and David Vance (Rutgers School of Business) have published an interesting article, "The Unbalanced High-Tech Life: Are Employers Liable?" The abstract:
- Technology has created new capabilities, as well as new demands, for many of today’s employees. For those who work in technology-enhanced environments, the pace and round-the-clock activity creates a source of stimulation that may become addictive.
- While the potential for this type of behavioral addiction is recognized by both researchers and the popular press, few companies are seriously considering the associated risks, one of which could be legal action against the organization.
- By combining research on addiction, technology use, workplace demands, and legal precedent, this article considers issues likely to require decision by the courts, as well as background on the evolution of related legal questions for insight to possible outcomes.
If workplace technology addiction becomes a realistic cause of action, my dean had better be ready. On the other hand, that would also mean that I shouldn't expect a school-provided iPhone anytime soon.
Hat Tip: Bill Herbert
David Doorey (York University) has a post at Doorey's Workplace Blog that takes a comparative look at the EFCA debate. Looking in particular at the access proposals raised by Sen. Specter and endorsed by the Washington Post, Doorey notes that Britian has a similar access law. He also links to some great background on Canadian access laws. Doorey's main argument:
If we want an open and frank discussion about the pros and cons of collective bargaining–which seems like good policy to me–why doesn’t the state simply encourage that by ensuring that unions have equal access to the workers in non-working areas of the workplace (like lunchrooms, etc). That’s what the British laws require, where the state aims to ensure ‘equality of access’ to workers in the period preceding a unionization ballot.
Can you come up with a strong public policy reason why employers should be able to both speak to employees at work about why they should not choose collective bargaining and prevent union organizers from doing the same? I know employers don’t want their employees speaking to union organizers, but the public policy in both Canada and the U.S. is to encourage employees to hear both sides of the argument for and against collective bargaining. So what reason(s) justifies our laws’ preferential treatment of employers when it comes to access to workers to discuss the option of collective bargaining?
Check out the full post.
Tuesday, May 12, 2009
- Alison I. Stein, Women Lawyers Blog for Workplace Equality: Blogging as a Feminist Legal Method, 20 Yale J.L.& Feminism 357 (2009).
- John A. Pearce II & Dennis R. Kuhn, Managers' Obligations to Employees with Eldercare Responsibilities, 43 Univ.of Richmond L. Rev. 1319 (2009).
- Mitchell H. Rubinstein, Duty of Fair Representation Jurisprudential Reform: The Need to Adjudicate Disputes in Internal Union Review Tribunals and the Forgotten Remedy of Re-Arbitration, 42 U. Mich. J.L. Reform 517 (2009).
- Donald H. Stone, The Disabled Lawyers Have Arrived; Have They Been Welcomed With Open Arms Into The Profession? An Empirical Study of The Disabled Lawyer, 27 Law & Ineq. 93 (2009).
- Iman Syeda Ali, Bringing Down the "Maternal Wall": Reforming the FLMA to Provide Equal Employment Opportunities for Caregivers, 27 Law & Ineq. 181 (2009).
- Michael J. Hilkin, The NLRB's Oil Capitol and Toering Decisions and Their Effects on Unionization and American Labor Law, 94 Iowa L. Rev. 1051 (2009).
- Rachel Osterman, Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII's Ban on Sex Discrimination Was an Accident, 20 Yale J.L.& Feminism 409 (2009).
- Benjamin Crouse, Worksite Raids and Immigration Norms: A "Sticky" Problem, 92 Marq. L. Rev. 591 (2009).
- Christopher G. Murrer, A Call for Uniform Application of the Americans with Disabilities Act: Does Title II Support a Claim for Employment Discrimination?, 47 Duquesne L. Rev. 115 (2009).
Comparative Labor Law & Policy Journal
vol. 30 (Spring 2009)
Religious Expression in the Workplace
- Fouad A. Riad, Religion and the Workplace: A Social Science Perspective, 30 Comp. Lab. L. & Pol'y J. 467 (2009).
- Kenneth D. Wald, Religion and the Workplace: A Social Science Perspective, 30 Comp. Lab. L. & Pol'y J. 471 (2009).
- Lorne Sossin, God at Work: Religion in the Workplace and the limits of Pluralism in Canada, 30 Comp. Lab. L. & Pol'y J. 485 (2009).
- Francois Gaudu, Labor Law and Religion, 30 Comp. Lab. L. & Pol'y J. 507 (2009).
- Achim Seifert, Religious Expression in the Workplace: The Case of the Federal Republic of Germany, 30 Comp. Lab. L. & Pol'y J. 529 (2009).
- Nurhan Süral, Islamic Outfits in the Workplace in Turkey, a Muslim Majority Country, 30 Comp. Lab. L. & Pol'y J. 569 (2009).
- Mark Freedland and Lucy Vickers, Religious Expression in the Workplace in the United Kingdom, 30 Comp. Lab. L. & Pol'y J. 597 (2009).
- William W. Van Alstyne, Religion in the Workplace: A Report on the Layers of Relevant Law in the United States, 30 Comp. Lab. L. & Pol'y J. 627 (2009).
- Alain Supiot (conference organizer; photo above), Orare / Afterward, 30 Comp. Lab. L. & Pol'y J. 641 (2009).
Employee Rights & Employment Policy Journal
Comments on the ALI's Proposed Restatement of Employment Law
This issue is out in record time, thanks to the heroics of Marty Malin, Marcia McCormick, and their team of student editors.
- Kenneth G. Dau-Schmidt, A Conference on the American Law Institute's Proposed Restatement of Employment Law, 13 Employee Rts. & Employment Pol'y J. 1 (2009).
- Reuel Schiller, "It is Not Wisdom, but Authority that Makes a Law:" A Historical Perspective on the Problem of Creating a Restatement of Employment Law, 13 Employee Rts. & Employment Pol'y J. 39 (2009).
- Dennis R. Nolan, Theodore J. St. Antoine, Joseph E. Slater, and Alvin Goldman, Working Group on Chapter 1 of the Proposed Restatement of Employment Law: Existence of Employment Relationship, 13 Employee Rts. & Employment Pol'y J. 43 (2009).
- Alan Hyde, Response to Working Group on Chapter 1 of the Proposed Restatement of Employment Law: On Purposeless Restatement, 13 Employee Rts. & Employment Pol'y J. 87 (2009).
- Matthew W. Finkin, Lea VanderVelde, William Corbett, and Stephen F. Befort, Working Group on Chapter 2 of the Proposed Restatement of Employment Law: Employment Contracts: Termination, 13 Employee Rts. & Employment Pol'y J. 93 (2009).
- Rachel Arnow-Richman, Response to Working Group on Chapter 2 of the Proposed Restatement of Employment Law: Putting the Restatement in its Place, 13 Employee Rts. & Employment Pol'y J. 143 (2009).
- Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Roberto L. Corrada, Catherine L. Fisk, and Pauline T. Kim, Working Group on Chapter 4 of the Proposed Restatement of Employment Law: The Tort of Wrongful Discipline in Violation of Public Policy, 13 Employee Rts. & Employment Pol'y J. 159 (2009).
- Michael J. Zimmer, The Restatement of Employment Law is the Wrong Project, 13 Employee Rts. & Employment Pol'y J. 205 (2009).
- Tyson B. Roan, Anything But Doomed: Why Restrictions on Offshoring are Permissible Under the Constitution and Trade Agreements, 13 Employee Rts. & Employment Pol'y J. 209 (2009).
Congratulations to Marty Katz, who yesterday was named Interim Dean of University of Denver's Sturm College of Law. He succeeds outgoing Dean José (Beto) Juárez Jr., who abruptly resigned in February.
Marty specializes in antidiscrimination law, both within constitutional law and employment law, with particular emphasis on the convaluted test for disparate treatment discrimination. His work on antidiscrimination law has been published in the Georgetown Law Journal, the Notre Dame Law Review, the Indiana Law Journal, the Hastings Law Journal, and the Yale Law Journal. His most recent article, Guantanamo, Boumediene, and Jurisdiction-Stripping: The Imperial President Meets the Imperial Court, was published in Constitutional Commentary, a peer-reviewed journal. He has lectured extensively on antidiscrimination law, free speech and religion, separation of powers, defamation, and employment-related intellectual property law. He also has made numerous media appearances. Prior to teaching full time, Katz was a partner in the employment law group at Davis, Graham & Stubbs, and a law clerk to David M. Ebel on the U.S. Court of Appeals. In his spare time, he flies search and rescue missions for the Civil Air Patrol.
Monday, May 11, 2009
The Washington Post has an editorial on EFCA today. I find it interesting because it largely embodies my personal view, which is that EFCA is an imperfect solution to a serious problem. I think the Post's take on this--not to give it too much importance--is one of several signs of how a compromise measure may play out on Capitol Hill. Or not. The editorial also serves as a reminder that there is always a risk that the sharp differences between management and labor may once again result in nothing.
Here's what the Post's editorial board had to say about the proposal:
We have said before that the Employee Free Choice Act is a flawed solution to a real problem: unfair barriers in the way of union organizing. We have been critical of the labor movement for its reluctance to consider alternatives that could level the playing field between labor and management. So we have, we hope, some standing to criticize a leading management group for its absolutist stance against not only the Employee Free Choice Act as written but also against compromise proposals. Instead of engaging in a good-faith effort to fix the problem, the group, the Coalition for a Democratic Workforce, chooses to deny that there is a problem. . . .
The Employee Free Choice Act would address [the problems in organizing campaigns] by allowing unions to gain recognition if a majority of workers sign cards indicating support for the union, among other provisions. This change goes too far in the other direction, but one attractive solution would be to speed up the time frame for holding union elections while allowing union organizers some access to employees in the workplace.
That approach is being floated in Congress by, among others, Sen. Arlen Specter (D-Pa.), who suggested that an election be held within three weeks of the union filing such a request with the National Labor Relations Board and that union organizers be allowed "equal time under identical circumstances" to make their pitch to employees if management has held "captive audience" speeches making the anti-union case. Some of labor's strongest backers in Congress, aware that the measure as written probably lacks the 60 votes needed, are discussing this and other potential compromises.
The other side remains dug into a "no compromise" stance. In a "Dear Senator" letter last week, the Coalition for a Democratic Workforce, composed of 580 organizations including the U.S. Chamber of Commerce and the National Association of Manufacturers, summarily dismissed any such discussion. "Let us be clear and frank on this matter; there can be no acceptable 'compromise' on any issue of labor law reform due to the very real threat posed by EFCA," the group wrote. Moreover, the coalition failed to acknowledge any flaw in the existing process -- except to the extent that it suggested, falsely, that the current playing field is tilted in favor of unions. That hardly sounds like bargaining in good faith.
Hat Tip: Dennis Walsh
Rick recently posted part of the Labor Law Group's opposition to the draft Restatement of Labor Law. Joe Garrison, a plaintiff-side member of the Restatement's Members Consultative Group (he represents NELA in the Restatement process) has written a response, which describe his personal views of the draft. The letter states (Download Letter):
Second, I have not detected any bias on the part of the Reporters.
Finally, I strongly oppose any effort to delay the continuation of this project. The three chapters presently before the members are important but they hardly present the whole story of employment law. If later drafting of the remaining chapters reveals inconsistencies, or requires revisiting parts of these first chapters, we can undertake that task at that time.
Sometimes, the perfect is the enemy of the good. Right now, that is how it feels to me. The chapters up for consideration are not perfect; they are more than good. My vote is to continue to work on this Restatement by approving the chapters up for consideration, and moving forward with the remaining ones.
What do you get when you take what seems to be a well-meaning employer, a major recession, and a little too much thinking outside of the box? Another good employment law hypo. I'll let the employer's press release lay out it's take on handling pressure to lay off employees and cut labor costs:
[W]hat these strategies don’t do is MAKE us money. That’s what Clint Greenleaf, CEO of Greenleaf Book Group, believes management should really focus on. . . .
“Cutting one person from the team is losing one invaluable resource that helps make this entire company tick,” he said. “In the short term, it’s hurting morale and lowering the productivity of a department. In the long run it means the entire company’s time and money spent trying to make up for the loss-redistributing tasks and overburdening departments, struggling to make up the slack, dealing with the paperwork, and eventually putting additional man-hours toward rehiring and retraining. And of course, the toll layoffs take on the economy are tremendous.”
The most important resource in any company is people, according to Greenleaf. Without their labor and commitment, most companies would not be successful. To that end, he’s asked his employees to institute what he calls the “lay-on” as opposed to the layoff.
“Essentially, every employee is putting in one voluntary extra hour per day at work,” he explained “One extra hour to be used in the most advantageous way possible: finishing up projects, having a meeting with a client or vendor, assisting a coworker, getting hands dirty working in another department. Even cleaning a desk or organizing files, if it helps improve efficiency.” . . .
That FLSA audit is going to hurt.
On a more serious note, this does raise the issue of trying to put more flexibility in FLSA. Forcing employee to "volunteer" hours is obviously a dangerous thing to legalize, but there's no question that in some workplaces, more novel schedules would benefit both employers and employees. Whether the need for flexibility and the need to protect employees' FLSA right can be reconciled in a harder question.
Hat Tip: Lisa Milam-Perez
Sunday, May 10, 2009
Congratulations to Robert Belton, who at Vanderbilt's May 8 commencement ceremony was given the title of emeritus faculty member.
Belton joined the Vanderbilt Law faculty in 1975 as director and instructor in the Fair Employment Clinical Law Program. He became an associate professor in 1977 and professor in 1982. An employment law expert, Belton is co-author of a leading casebook on employment discrimination law, and his treatise Remedies in Employment Discrimination Law was published in 1992. His articles on employment discrimination have appeared in numerous legal journals. He is the recipient of the Clyde C. Ferguson Award from the Minority Section of the American Association of Law Schools, the Napier-Looby Lifetime Achievement Award and the National Bar Association Presidential Award for Scholarship and Teaching. A member of the American Law Institute, he has served on the Executive Committee of the AALS, the Executive Board of the National Employment Lawyers Association and the steering committee of the Gender and Racial Fairness Task Force for the 6th Circuit of the U.S. Court of Appeals. Belton earned his B.A. from the University of Connecticut and his J.D. from Boston University School of Law. He was assistant counsel at the NAACP Legal Defense and Educational Fund in New York for five years serving as counsel for plaintiffs in several landmark civil rights cases before the U.S. Supreme Court, including the seminal Griggs v. Duke Power Co.
Jeff Hirsch (Tennessee) has just posted on SSRN his article E-Mail and the Rip Van Winkle of Agencies: The NLRB’s Register-Guard Decision, to be published in the Proceedings of the N.Y.U. 61ST Annual Conference on Labor (Jonathan Nash ed. 2010). Here's the abstract:
Although a relatively new phenomenon, employee use of e-mail and other electronic communications for collective purposes implicated an issue that has existed since the early days of the National Labor Relations Act: the conflict between employers’ property rights and employees’ right to engage in collective action. The Board’s decision in Register-Guard is significant, as well as troubling, because it ignored long-established precedents in both labor and property law by elevating in virtually all instances employers’ personal property interests in their computer systems above employees’ NLRA rights. Moreover, in an aspect of Register-Guard that was less anticipated than the e-mail issue but ultimately more far-reaching, the Board modified its general approach to all communication policy cases - even those not involving e-mail - by implementing an extraordinarily narrow definition of unlawful “discrimination.”
Register-Guard’s rulings on e-mail usage and discriminatory restrictions on workplace communications represent a sea change in how the Board regulates employees’ ability to discuss collective issues at work. Whether the case survives long enough for these rulings to make a lasting impact is unclear. What is more obvious, however, is that the Register-Guard Board further cemented its image as an agency mired in the past. A future Board that wishes to shed this persona must find a way to give electronic communications and unequal access rules the respect that they deserve under the NLRA.