Workplace Prof Blog

AALS Happy Hour with Conglomerate and Prawfsblawg

If you're going to be in Long Beach for the AALS Mid-Year Meetings, join us with the folks at Conglomerate (who had the brilliant idea to set this up) and Prawfsblawg for happy hour.

We'll be meeting at Mai Tai Bar Long Beach, Wednesday, June 10, at 8:15pm.

Here are walking directions from the Westin.  Matt Bodie is lamenting the lack of Scorpion Bowls, but I think we can convince him to try a Wicked Wahine instead.

Hope to see you there.

-JH

SSRN Top-10 List of Recent Employment & Labor Downloads

1. Andrew P. Morriss, William T. Bogart, Andrew Dorchak, & Roger E. Meiners, Green Jobs Myths (1137).
2. David A. Hyman, Employment-Based Health Insurance and Universal Coverage: Four Things People Know That Aren't So (516).
3. Mitchell H. Rubinstein, Obama's Big Deal: The 2009 Federal Stimulus - Labor and Employment Law at the Crossroads (210).
4. Hermann J. Stern, Making Bonus Systems Fair and Crisis Proof (178).
5. Karen C. Burke, Fuzzy Math and Carried Interests: Making Two and Twenty Equal 710 (106).
6. Jonathan Barry Forman (photo above), Funding Public Pension Plans (104).
7. Scott A. Moss & Peter H. Huang, How the New Economics Can Improve Discrimination Law, and How Economics Can Survive the Demise of the 'Rational Actor' (97).
8. Brian D. Cadman, Mary Ellen Carter, Katerina Semida, Compensation Peer Groups and Their Relation with CEO Compensation (95).
9. Gordon L. Clark & Roger Urwin, Innovative Models of Pension Fund Governance in the Context of the Global Financial Crisis (95).
10. Ana M. Albuquerque, Gus De Franco, & Rodrigo S. Verdi, Peer Choice in CEO Compensation (88).

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Thanks to Paul Secunda for sending us word of Hernandez v. Hillsides, Inc., currently pending in the California Supreme Court, which raises the issue of whether a mere attempt to videorecord an individual in the workplace is an invasion of privacy.  An employer, trying to figure out who was watching porn on the office computer in the middle of the night, installed a surveillance camera and didn't tell anyone.  The camera never caught anyone doing anything -- the only images recorded were of an empty desks.  Nonetheless, two employees not suspected of watching the porn sued, claiming the employer invaded their privacy by installing the camera and not telling them.

Oral arguments were heard Wednesday, and a decision is expected within the next several months.  For more, see Law.com's Hidden Camera Case Turns on Expectation of Privacy in Workplace.

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FLRA Nominees

The White House has just announced two new nominations for the FLRA, one for the Board and the other for General Counsel.  Both have been sent to the Senate.  Oddly, it doesn't look the NLRB nominees have been sent.  I'm not sure why--waiting on the Republican nominee, maybe?--but hopefully they'll go soon. 

The FLRA nominees:

Ernie DuBester, Nominee for Member, Federal Labor Relations Authority

Ernie DuBester served as Chairman (and Member) of the National Mediation Board (NMB) from Nov. 1993-August 2001. Nominated to that position by President Clinton, he was unanimously confirmed by the U.S. Senate twice. DuBester has 35 years of experience in labor-management relations, working as a public servant, advocate, mediator, arbitrator, and as an academic. He has nearly 20 years of experience with the federal government. He began his career at the National Labor Relations Board serving as counsel to former Chairman (and Member) John Fanning (1975-81). From 1981-84, he was a Union attorney with the firm of Highsaw & Mahoney. DuBester served as legislative counsel to the AFL-CIO from 1984-93. After serving as Chairman (and Member) of the NMB, DuBester was a Professor and Director of the Dispute Resolution Program at George Mason University School of Law (GMUSL) (2001-2005). While at GMUSL, he also worked as an arbitrator and mediator of labor & employment matters. He also previously taught collective bargaining & arbitration at the Catholic University of America School of Law. Since July of 2005, he has worked as a mediator at the NMB. DuBester received his undergraduate degree from Boston College, his law degree from the Catholic University of America School of Law, where he was Recent Developments Editor of the Law Review, and his Masters of Law in Labor Law from the Georgetown University Law Center.

Julia A. Clark, Nominee for General Counsel, Federal Labor Relations Authority

Julia Akins Clark currently serves as General Counsel of the International Federation of Professional and Technical Engineers, AFL-CIO.  She received her J.D. in 1980 from the American University, Washington College of Law, and her B.A. in 1977 from Oklahoma Baptist University.  She started her legal career as an Honors Program trial attorney in the United States Department of Justice, Antitrust Division.  For the past 20 years she has practiced labor and employment law on behalf of unions and workers and before federal courts and agencies, including the Federal Labor Relations Authority, the National Labor Relations Board, the National Mediation Board and the Personnel Appeals Board of the General Accountability Office.

-JH

Some Good Bad News on Unemployment

The May unemployment data is out today and, while bad, it's getting bad a lot slower than it has been.  The national unemployment rate is now 9.4%, including 345,000 job losses in May.  However, this is a much smaller number of monthly losses than we've seen in a long time. 

The employment situation is still awful and will remain so for a while, but the bottom that everyone has been hoping to find may be in sight.

-JH

Two Books on Work and Its Impact on Personal Satisfaction

Maybe this is a sign that we should maintain a regular book feature:  the Wall Street Journal today has an article on two books looking at the type of work that people perform and its impact on their lives.  The first, "The Pleasures and Sorrows of Work, by Alain de Botton, sounds like an homage to Albert Camus.  The author explores "mundane" jobs and is surprised to find workers who take pride in what they do.  According to the WSJ:

For Mr. de Botton, there is something absurd about the energy and anxiety that we pour into our jobs, given that even our most glorious deeds are destined to oblivion. Work has no greater value, he suggests, than as a lifelong distraction from the fact of our inevitable demise. Having allowed us to put a roof over our heads, work is finally a way of keeping us "out of greater trouble."

Maybe this is one author who needs to find a different career path.  As a start, he could look to the second book, "Shopcraft as Soulcraft," by Matthew Crawford, a PhD political philosopher and former think tank head who shifted gears (pun intended) by opening a motorcycle repair shop.  Crawford extols the satisfaction of skilled manual work--which he says provides objective quality, clear utility, and reinforces community bonds--in comparison to the increasingly rote work of many white-collar jobs (although, his emphasis on the great treatment he gets in restaurants manned by cooks whose bikes he restored could also be shared by a good lawyer).  Moreover,

[Crawford] can't help noting that economic trends favor the humble tradesman. Globalization and information technology are fast undermining the job security of architects, accountants, radiologists, and anyone else whose work can be outsourced abroad or (using applications like TurboTax) performed by machines. But customers in rich countries can't do without the on-site services of skilled manual workers, who, thanks to the rarity of vocational training in public schools, are in the U.S. today enviably few. "If you need a deck built, or your car fixed, the Chinese are no help," Mr. Crawford observes. "Because they are in China."

Hat Tip:  Paul Secunda

-JH

Two Arbitration Decisions

Today's Daily Labor Report (subscription required) notes two important employment arbitration cases.  In Chester v. iFreedom Communications Inc. (DLR subscription required), Cal. Super. Ct., No. BC353567, 5/28/09, DLR reports that a California court has confirmed an arbitration award of $4.1 billion.  The award is in favor of the former chief marketing officer of iFreedom Communications, a provider of VoIP and WiFi technology.  The claim was for breach of employment contract by firing without cause and failing to pay compensation that included stock options and commissions based on a percentage of gross sales.  This is by far the largest employment arbitration award I have ever seen.  UPDATE:  Dennis Nolan just provided a non-DLR link to the case.

In Smith v. ServiceMaster (DLR subscription required), No. 09-250, 2009 WL 1457143 (M.D. Tenn. 2009), the U.S. District Court for the Middle District of Tennessee refused to compel arbitration of an employment claim because the employer could not demonstrate employee assent.  The employer had mailed copies of the arbitration program to employees' homes and had discussed the program in companywide meetings.  The employee claimed he never received the mailed copy and missed the meetings.  The employer couldn't prove otherwise, so the court held there was no agreement to arbitrate.

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Court Asks for Response to Laurel Baye En Banc Petition

The D.C. Circuit has just issued an order directing the employer in Laurel Baye to respond to the NLRB's petition for rehearing and petition for rehearing en banc by June 18.  The court doesn't do that in every instance, so this may be a sign that the en banc petition might get some votes--or at least is getting the court's attention.

Hat Tip:  Dennis Walsh

-JH

California Court of Appeals Gives Starbucks Big Win

We posted a while back on a California district court's $100 million-plus award against Starbucks to baristas who alleged that the company's requirement that tips for baristas be shared with shift supervisors violated California state law that prohibits managers and supervisors from sharing in employee gratuities.  The California Court of Appeals, however, has just reversed that award.  The difference, according to the appellate court, was that the trial court based its decision on cases finding violations where tips given to individual employees were required to be pooled and ultimately distributed to managers among others.  In this case, however, the tips were initially given in a "tip jar"--not to an individual employee.  According to the court, Distributing initially pooled tips to managers did not violate the California law:

The Legislature wanted to prohibit a business owner from deceiving a customer who left a tip for an employee by requiring that the employee later transfer any part of the tip to the employer or the employer's agent. It is undisputed here that the tipping public intended to collectively tip both the baristas and the shift supervisors—for their work as a "team." Requiring these collective tips to be given solely to baristas would mislead the public.

It's not clear to me that the public thinks that supervisors will receive some of the tips left in a tip jar (that's certainly not my intent when I leave such tips), but the legislature is going to have to make the statute more explicit if they want to prevent tip sharing with supervisors in all instances.

-JH

11th Circuit Orders Rehearing in Sexual Harassment Case

The Eleventh Circuit has granted rehearing en banc in a case that was a rare sexual harassment win that a panel had granted a plaintiff over a year ago, Reeves v. C.H. Robinson. The blog entry about it is here. The plaintiff was only one of two women who worked for the employer in Birmingham, and the only woman in the work area she was assigned to. According to her complaint, the men in the plant frequently referred to women in gendered an sexualized ways, for example, telling the plaintiff to "go help that bitch" in a particular location. The men also listened to a graphic radio program every day that referred to women in derogatory and sexualized ways constantly. She complained to coworkers and to supervisors, but nothing changed. She would be allowed to change the radio station, but it would soon be switched back to the program. The Eleventh Circuit found that even though the plaintiff was never called any of the gendered names or subject to unwelcome advances, she nonetheless had a valid sexual harassment claim, pointing out that this was consistent with the Circuit's racial harassment cases, which did not require that a plaintiff be a specific target of the harassing target, and it was consistent with other circuits. 

Along with its order granting rehearing, the Eleventh Circuit asked the parties to brief the following questions:

1. Whether the district court erred when it granted summary judgment in favor of C.H.
Robinson and against Reeves's complaint of a hostile work environment on the ground
Reeves was not harassed "because of" her sex, 42 U.S.C. § 2000e-2(a)(1)?
2. Whether Reeves's complaint of a hostile work environment should be evaluated as a
claim of disparate treatment or a claim of disparate impact?

The first question is essentially what the panel had answered "yes." The causation question can be very challenging in discrimination cases, and has resulted in a lot of judicial and scholarly discussion. It could be phrased in a couple of different ways, which is probably what the second question gets to: Were the harassers motivated by the plaintiff's sex--did they act this way because she was a woman rather than in spite of the fact that she was a woman; or was her experience of this environment more hostile because she was a woman.

That latter may sound like disparate impact, but I would suggest it's not. Here's what the argument would sound like. Both women and men were exposed to the same language, for example, the reference to women as "bitches." So if women experience that as hostile, "bitch" is a neutral term that impacts women negatively but not men. Thus, disparate impact.

But that assumes that "bitch" could be a neutral term (which the Seventh Circuit has actually held, but which I disagree with). It's gendered--and at the very least, it was gendered in this context where all those referred to as bitches were women and nearly all women were referred to that way. I can't believe that any court would say that the n-word is neutral but African Americans simply are more affected by it. The term itself has gendered (or for the n-word racial) content. It's much more analagous to sex-stereotyping, a form of disparate treatment, than it is disparate impact.

Finally, I can't see what difference it makes to call this disparate impact or disparate treatment--or what sense it makes. Both are prohibited by Title VII. And in the harassment context, courts don't often analyze the cases using those terms because they just don't fit quite right. We'll have to see what the Eleventh Circuit will do with it all.

In the meantime, I hope the court considers this excerpt from the Supreme Court's first sex harassment case, Meritor Savings Bank v. Vinson:

In concluding that so-called “hostile environment” ( i.e., non quid pro quo ) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. . . . Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment:

“[T]he phrase ‘terms, conditions or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers....” 454 F.2d, at 238.

Courts applied this principle to harassment based on race, . . . religion, . . . and national origin . . . . Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.

Hat tip: Aly Palmer

MM

Creative Unions

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Creative Unions is the brainchild of a couple of Australian campaign organizers.  The site allows organizers to post creative content such as posters and videos, with the idea of sharing the union movement’s knowledge and skills of campaigning, communication, and design.  Check out especially this clip on the need for maternity rights.

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Rogowski on European Transitional Labour Markets

Ralf Rogowski (University of Warwick) has just published The European Social Model and Transitional Labour Markets.  Here's the publisher's description:

Bringing together theoretical, empirical and comparative perspectives on the European Social Model (ESM) and transitional labour market policy, this volume contains theoretical accounts of the ESM and a discussion of policy implications for European social and employment policies that derive from research on transitional labour markets. It provides an economic as well as legal assessment of the European Employment Strategy and contains evaluations of new forms of governance both in European and member state policies, including discussions of the potential and limits of soft law instruments. Country studies of labour market reforms in Denmark, the Netherlands, Belgium and France assess their contribution to an emerging ESM, while comparative accounts of the ESM examine mobility and security patterns in Europe and beyond and evaluate recent 'flexicurity' policies from a global perspective.

Hat tip: Marley Weiss & Paul Secunda.

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Cooper, Moberly Named to NAA Board

Congratulations to Laura Cooper (Minnesota) and Robert Moberly (Arkansas), both of whom were elected to the Board of Governors of the National Academy of Arbitrators.

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Gould on Reforming Labor Law by Reforming EFCA

Bill Gould (Stanford; former NLRB Chair) spoke last week at the London School of Economics on How Obama Could Fix Labor Law.

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Recently Published Scholarship

Berkeley Journal of Employment and Labor Law
Volume 29, Number 2, 2008

Articles

• Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, p. 269.
• Matthew W. Green, Jr. (left), Lawrence:  An Unlikely Catalyst for Massive Disruption in the Sphere of Government Employee Privacy and Intimate Association Claims, p. 311.
• Jonathan Fineman (second), The Inevitable Demise of the Implied Employment Contract, p. 345.
• Amir Paz-Fuchs (third), Behind the Contract for Welfare Reform:  Antecedent Themes in Welfare to Work Programs, p. 405.

Lecture

• Damon A. Silvers (right), How a Low Wage Economy with Weak Labor Laws Brought Us the Mortgage Credit Crisis, p. 455.

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UAW as Union and Owner

With the UAW's new stake in GM and Chrysler, issues are naturally arising about the union's dual constituency as a representative of employees and as an owner.  Steven Greenhouse at the New York Times examines this potential tension, noting that the UAW may being facing as much risk to its survival as the automakers:

With the union’s health fund set to own 17.5 percent of G.M.’s shares and 55 percent of Chrysler’s, the U.A.W. will both represent workers and be an owner, a novel dual role. . . .

Some industry experts predict that the union, far more than before, will help management increase profitability — with the goal of pushing up the automakers’ stock prices. A higher share price could mean billions more for the retirees’ health plan, helping to ensure ample funding for decades to come.  But other experts say the union will stick to its traditional truculence, focusing on preserving jobs rather than maximizing profits and share price. . . .

Christopher Mackin, president of Ownership Associates, a firm based in Cambridge, Mass., that advises businesses and workers about employee ownership, argued that the U.A.W.’s roles need not conflict. . . . Some employee-owned companies have failed, however, because management, mindful of their employee owners, often gave in to wage demands. 

For this reason, industry experts say, the Obama administration structured the G.M. and Chrysler plans to lessen the union’s voice in management. The retirees’ health fund has six public-appointed trustees and five union-appointed trustees. Though the union health trust owns 55 percent of Chrysler, it will hold just one seat on the Chrysler board. And at both automakers, the health fund’s shares will be nonvoting.

All this makes clear, one administration official said, that the union will not dominate and “this will not be Gettelfinger Motors.”  The U.A.W. president, Ron Gettelfinger, says he wants to sell the health fund’s shares as soon as practical. The union’s advisers have warned it would be unwise to tie up so much of the fund’s assets long term in a single company’s shares.

The UAW's new ownership stakes certainly gives the union new issues to consider.  However, I think the conflict problem has been overblown somewhat.  It certainly exists, but there are plenty of ways to minimize conflict, including limits on union board of directors.  Another related issue that hasn't been discussed as much is that union/employee ownership and, more importantly, control can raise potential labor law issues (as--shameless plug--I wrote about a while ago), although the same strategies to minimize conflicts of interest will typically address the legal issues as well.

-JH

The NLRB's Laurel Baye Petition

As we posted last week, the NLRB was planning on petitioning the D.C. Circuit for rehearing and rehearing en ban of Laurel Baye.  They have now done so--click the link to Download the NLRB's petition.

The legal arguments are what the Board's been arguing all along, as you would expect.  The argument for a rehearing stresses the circuit split, as well as the importance of keeping the decisions issued by the two-member Board and allowing future two-member Board (sadly, always a possibility) to continue the agency's work.  What will be interesting is how the Board will handle the cert petition in New Process Steel, as those same arguments could support granting cert in that case.

-JH

Supreme Court Remands FELA Verdict on Fear of Future Cancer Instruction

This morning, the Supreme Court issued a per curiam decision in CSX Transportation, Inc. v. Hensley, a case under the Federal Employers' Liability Act (FELA). The plaintiff, a railroad employee, had been exposed to a toxic solvent that caused him brain damage, making him unable to work. He was also exposed to asbestos, which caused asbestosis, a non-cancerous scarring of the lungs that for 1 in 10 sufferers, leads to mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity. Hensley sought damages for both diseases and for his fear of developing cancer in the future. A jury awarded him $5 million.

In a per curiam opinion, the Court reversed the judgment of the trial court and remanded the case. The Court held that it had made clear in Norfolk and Western Rail Co. v. Ayers that damages were available for fear of future cancer, but only if the plaintiff proved that his fear was genuine and serious. A plaintiff did not have to prove any physical manifestations of that fear. In this case, the railroad had requested a couple of jury instructions about the need to prove that the fear was genuine and serious and about what could be used to prove that. The trial court had not allowed those instructions, and the Supreme Court ruled that this was clear error.

Justices Stevens and Gisnburg dissented. Justice Stevens noted that the $5 million was a general verdict, and so it was impossible to say what portion of it represented the award for fear of future cancer. Stevens further cast doubt on the necessity of the instruction based on the language in Ayers. In that case, the Court had said that such an instruction was available, but not that it was required; at least that's what he believed it meant when he signed on to the opinion.

Justice Ginsburg stated that the particular instructions that this defendant requested went far beyond what Ayers suggested. All that should be necessary is a "plain and simple instruction: 'It is incumbent upon [the plaintiff] to prove that his alleged fear [of cancer] is genuine and serious." The railroad's requested instructions were detailed and listed a number of physical manifestations as ways that the plaintiff could carry its burden. That instruction was not appropriate under Ayers.

MM

Recently Published Scholarship

Articles

• Michelle A. Travis (left), Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans Without Disabilities, 76 Tenn. L. Rev. 311 (2009).
• Marcy L. Karin (right), Changing Federal Statutory Proposals to Address Domestic Violence at Work, 74 Brooklyn L. Rev. 377 (2009).

Student Scholarship

• Meagan Lindsey, The Family and Medical Leave Act: Who Really Cares?, 50 S. Tex. L. Rev. 559 (2009).
• Monica R. Moukalif, See No Evil: Applying a Labor Lens to Prostitute Organizing, 20 Hastings Women's L.J. 253 (2009).

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Secunda On Confirmation Hearings And Labor And Employment Law

Marcia Coyle at the National Law Journal in a recent article explored some pressing legal issues that should--but probably won't--be asked on Judge Sotomayor.  These issues include Rule 10b-5 under securities law, legality of TARP, high-tech crime, and--of course--labor and employment law.  Paul Secunda (Marquette) commented on what he viewed as some of the more significant questions in the area:

A confirmation hearing, some have said, is a window on the legal debates of the day. The window does not open wide enough, according to others. Key issues affecting businesses, workers, consumers, criminal defendants and others generally are ignored because senators do not earn much political capital by raising them, according to lawyers and scholars. Those issues, however, will have a profound impact on more people than will most of the predictable menu items. And, they add, Sotomayor's views on those issues would be more predictive of her role as a Supreme Court justice. . . .

[Some lament] the near disappearance of criminal justice issues from Supreme Court confirmation hearings, and labor and employment scholar Paul Secunda of Marquette University Law School has a similar complaint about his field.

But that does not mean there are no issues, particularly amid the recession, Secunda said. "To me, the most pressing thing right now is the ability of plaintiffs to get a remedy under ERISA [the Employee Retirement and Income Security Act]," he said. "It sounds arcane, but affects everyone on the economic ladder. There are no consequential damages, no back pay. Lots of employers now are looking to save money on these legacy costs — promises to pay generous health benefits. They're freezing pension benefits left and right."

Senators should ask Sotomayor, he said, where she sees the entitlement to social welfare. "What role does the Supreme Court have in guaranteeing minimum entitlement to social welfare benefits?"

He would also like questions about a constitutional right to bargain collectively. "Does it come under the First Amendment as expressive association or even under the 14th amendment as a privacy right?" he asked. "Do employers have any right to ask who you are married to, who you are sleeping with? And what right does an employer have to know and make decisions about what employees do when they're not at work?"

In the end, he said, "All that should really matter is whether the nominee is competent and has the acumen to be a good judge. But that's not how it is."

Congratulations, Paul!

-JH