Workplace Prof Blog

Work Law, Pedagogy, and VEBAs

Congratulations to Ruben Garcia, Catherine Fisk, and others on the AALS Planning Committee for pulling together a a great mid-year conference on Work Law.  Thanks to Paul Secunda, Scott Moss, Melissa Hart, and others for proposing it and obtaining AALS approval.

Only one blemish:  I was disappointed to learn that at conferences such as this, AALS routinely waives the registration fee for speakers on substantive but not pedagogical topics.  I suspect that this is an accurate reflection of misplaced institutional priorities.

The biggest light-bulb moment for me came in the ERISA presentation Friday afternoon by Colleen Medill (Nebraska) and Susan Cancelosi (Wayne State), when I asked a question about underfunded auto-industry VEBAs.  (Recall that VEBAs are investment trusts into which employers place some assets and all the liabilities for covering future employee benefits.)  Susan pointed out that although auto-industry VEBAs are advertised as a long-term solution to retiree health care, neither the auto companies nor the unions have any expectation that the VEBAs will function this way.  Instead, the VEBAs are intended -- and funded -- merely as bridges to Medicare for the legions of auto-industry workers who have retired at an age too early to qualify for health insurance through that government program.

Ouch.

rb

SSRN Top-10 List of Recent Employment & Labor Downloads

1. Lucian A. Bebchuk (photo above) & Holger Spamann, Regulating Bankers' Pay (595).
2. David A. Hyman, Employment-Based Health Insurance and Universal Coverage: Four Things People Know That Aren't So (539).
3. Mitchell H. Rubinstein, Obama's Big Deal: The 2009 Federal Stimulus - Labor and Employment Law at the Crossroads (220).
4. Hermann J. Stern, Making Bonus Systems Fair and Crisis Proof (185).
5. Karen C. Burke, Fuzzy Math and Carried Interests: Making Two and Twenty Equal 710 (126).
6. Jonathan Barry Forman (photo above), Funding Public Pension Plans (112).
7. Gordon L. Clark & Roger Urwin, Innovative Models of Pension Fund Governance in the Context of the Global Financial Crisis (109).
8. 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' (103).
9. Brian D. Cadman, Mary Ellen Carter, Katerina Semida, Compensation Peer Groups and Their Relation with CEO Compensation (98).
10. Ana M. Albuquerque, Gus De Franco, & Rodrigo S. Verdi, Peer Choice in CEO Compensation (94).

rb

BLS Reports on Employer Costs of Employee Compensation

The Department of Labor’s Bureau of Labor Statistics reports that in March 2009, employer costs for employee compensation averaged $29.39 per hour worked.  Wages and salaries, which averaged $20.49, accounted for 69.7 percent of these costs, while benefits, which averaged $8.90, accounted for the remaining 30.3 percent.  Hat tip: Carol Furnish.

rb

Fronstin on Consumer Engagement in Health Care

Should we encourage people to actively manage their health care by discounting the cost of health coverage for people who, for example, actively participate in a program to improve or maintain their health, carefully follow treatment regimens, and the like?  This paper, written by Paul Fronstin (EBRI) and just posted on SSRN, indicates that most Americans would say yes, and that a sizeable minority of folks would support discounting the cost of health coverage for people who effectively manage their health care in other ways.  The article is Consumer Engagement in Health Care: The Use of Lower Cost Sharing; here's the abstract:

This paper presents findings from the 2008 EBRI/MGA Consumer Engagement in Health Care Survey, focusing on public opinion regarding variation in cost sharing as it relates to consumer engagement in health care. Overall, 58 percent of individuals support lower cost sharing for patients who are actively participating in a program to maintain or improve their health; 40 percent support lower cost sharing for patients who use treatments that have been scientifically proven to be effective for their medical condition; 34 percent support lower cost sharing for patients who choose to see high-performing health care providers; 47 percent support lower cost sharing for patients who choose less invasive procedures to treat their medical conditions; and 58 percent support lower cost sharing for patients who carefully follow their treatment regimens. Between 13 and 25 percent disagreed with the use of lower cost sharing, while 28-40 percent neither supported nor opposed it. The paper also examines how the support for lower cost sharing related to patient engagement varies by health status and behaviors, demographics, and work status variables.

rb

You Know the Economy Is Really Bad When . . .

. . . the free beer tap dries up.  Canadian brewer Molson is now reducing the amount free beer it gives to employees and is cutting off its retirees completely.  According to MSNBC:

Molson, a division of Molson Coors, said it was looking to "standardize" its complimentary beer policy. There are 2,400 Molson retirees in Canada and their free beer costs the company about C$1 million ($900,000) a year, the Star said.

Molson retirees in the province of Newfoundland will see their monthly allotment of beer fall from six dozen a month to zero over the next five years. Current workers will see their allotment drop from 72 dozen bottles a year to 52 dozen.

"There was no consultation, we just received a letter that this is a done deal, which is totally unfair," Bill Bavis, who retired six years ago after 32 years at Molson's in St. John's, Newfoundland, told the Star. "I think with the economic downturn they're trying to take advantage of us, as a way to cut retirees' benefits and justify it."

Unions have filed complaints over the change in certain areas, so we'll see what happens.  Molson may decide to rethink their decision.  When I worked at the NLRB, it quickly became obvious how certain seemingly minor issues really riled up employees, including what's served for a free lunch.  So I can only imagine what cutting beer allotments will do.

Hat Tip:  Lynn Dancy Hirsch

-JH

AALS Workshop on Work Law

Jeff and I are in Long Beach through Friday at the AALS Workshop on Work Law.  The program is terrific -- it looks to be a great conference.  I don't know how I'll pick and choose what to blog about.

rb

State Efforts to Require Secret-Ballot Elections

.
Dennis Nolan, via today's Daily Labor Report (subscription required), tells us of several state legislative efforts (most recently in Arkansas) to require secret ballots in union elections.  As Dennis points out, such efforts obviously are preempted by the NLRA.

rb

Hearings on Paid Sick Leave and Single Payer Health Care

The House Subcommittee on Health, Employment, Labor, and Pensions of the Committee on Education and Labor is holding hearings today on single payer health care. And tomorrow, the Subcommittee on Workforce Protections  will hold hearings on the Healthy Families Act (H.R. 2460) and the Family Income to Respond to Significant Transitions Act (FIRST Act, H.R. 2339), which were introduced in May. Both of these bills would provide for paid FMLA-type leave.

As a side note, the House Committee on Education and Labor has revamped its website, and it is an incredible resource to see what the committee is working on.

MM

Timmons on Non-Targeted Sexual Harassment

Kelly Cahill Timmons (Georgia State) is quoted at length in a news article by Alyson Palmer of the Fulton County Daily Report on the recent decision by the Eleventh Circuit to rehear a sexual harassment case from last year. The case involved a woman who worked in a workplace permeated with talk about sexual activity and gendered slurs. The plaintiff was not ever called any of these slurs, although they were spoken to her to refer to other women, and she was never the target of sexual advances. The Eleventh Circuit held that she was subjected to sexual harassment even without being targeted in that way, and now the full court will rehear the matter. For a more thorough explanation of the case, you can read the prior post here.

Kelly argued several years ago in, Sexual Harassment and Disparate Impact: Should Non-Targeted Workplace Sexual Conduct Be Actionable under Title VII?, 81 Neb. L. Rev. 1152 (2002-2003) that such non-targeted sexual talk (not the gendered slurs) should be actionable under a disparate impact discrimination theory. From the news article,

[In the Nebraska article, Timmons argued that a]llowing lawsuits over sex talk in the workplace could reinforce the image that women are delicate and in need of protection . . .  and may focus courts and employers on sexual conduct rather than more insidious forms of gender-based hostility in the workplace.

"It's dangerous to say that all talk about sex is disproportionately harmful to women," she explained last week. . . .

. . .

She said when it comes to sexual harassment cases, most courts have not distinguished between disparate treatment claims, which allege that women or minorities are treated differently than other employees, and disparate impact claims, which allege that a job requirement or condition that applies to all employees disadvantages women or minorities. The distinction could matter because plaintiffs cannot get a jury trial or money damages on a claim of disparate impact, but only a judge's order that the employer do things differently in the future.

Most disparate impact cases have to do with the qualifications for a job, such as whether an employer has a good enough reason to require prospective employees to pass certain physical fitness standards. Timmons notes in her article that on rare occasions a plaintiff may successfully challenge a workplace condition on a disparate impact theory, such as in a 1987 6th Circuit case where a female construction worker complained that a requirement that workers use dirty portable toilets without running water or clean toilet paper presented a greater hardship for women than men.

Timmons said last week that derogatory words for women can be the basis for a disparate treatment claim, sometimes called an intentional discrimination claim. Reeves complained about a co-worker's use of what Timmons sometimes refers to as "the C-word," and Timmons said that word in particular is analogous to the worst racial slur. No studies are needed to show that using those words amounts to discrimination, she said. She said she hopes that in the midst of delving into this difficult issue the 11th Circuit doesn't retreat from its recognition that the use of certain words can support a hostile work environment claim.

But Timmons argued that claims over workplace talk about sex, as opposed to the use of slurs, should be handled differently, under a disparate impact theory. In an office where women dominated, she suggested, a man could be made uncomfortable by such talk as well. She said plaintiffs might be able to point to some research that says such talk is more harmful to women. "I think the theory should be available," said Timmons. "I'd be very interested to see what the court says about how you would prove that."

I agree that this will take some deep thinking by the court (and scholars) to fully flesh out. I'm not sure that I fully agree with Kelly on the sexualized language, though. She makes a great contribution by distinguishing between hostile language and sexualized language, but I think that the concerns she raises may be analyzed in the "severe and pervasive" part of the analysis for non-tangible-employment-action sexual harassment. "Severe and pervasive" seems to encompass not only a quantitative aspect to the conduct, but also a normative or qualitative aspect too.

Maybe it's the old-fashioned (pre-modern?) radical feminist in me, but I think that the only kind of sex talk that would satisfy the severe and pervasive threshold would be inherently gendered in the same way that gendered slurs are and therefore would be disparate treatment. For sex talk to reach that severe and pervasive threshold, it has to be the type that does more than discomfort a person (or offend sensibilities), male or female. It has to be the kind that makes the person feel less of a person, or fundamentally disempowered, and that kind of sex talk is very tied up in power and traditional gender roles and norms. When men are the subjects of this kind of talk in a way that would be found to be severe and pervasive enough to alter the working environment for them, the talk is of a type that is usually used to feminize those men. Thus, this type of sex talk seems to present the same kind of issue to me as the challenges courts are facing in teasing out the rules for same-sex sexual harassment and boils down to a lack of understanding or agreement about why it is that sexualized (as opposed to just mean) conduct is discrimination because of sex. It also would be disparate treatment rather than disparate impact because, like with the slurs, it's inextricably linked with gender roles and norms.

The news article provides a really excellent analysis of the issues, unusual even in legal journalism, and Kelly's work in the area is excellent as well. I recommend a read, and congratulations Kelly!

MM

Bill Would Amend NLRA to Permit Individualized Wages

Today's Daily Labor Report (subscription required) indicates that two Republicans have introduced identical bills in the Senate and House that would permit employers to pay higher wages to individual employees who work under a collective bargaining agreement.  The legislation is called the the Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act.

Mmm-hmm.  I guess it never occurred to the sponsors that if some employees can get paid more, that necessarily means that some employees can get paid less.  Kind of takes the "collective" out of "collective bargaining".  But I'm guessing that's the whole point of the proposed legislation.

Hat tip:  Dennis Walsh.

rb

Lynk on Rising Inequality and Labour Law

Michael Lynk (Western Ontario) has just posted on SSRN his new article (delivered as the Ivan Rand Memorial Lecture at the University of New Brunswick in February, and to be published in the University of New Brunswick Law Journal) Labour Law and the New Inequality.  Here's the abstract:

Rising economic inequality in Canada and the Western world has become an unspoken but influential political theme over the past quarter century. The Great Compression between the late 1940s and the 1980s – which brought an unlamented end to the pre-war Gilded Age and its social inequities, established a post-war middle-class society in the industrial democracies, and created a host of equalizing institutions, including a vibrant union movement – has been unravelling since the rise of modern political conservatism. A hydraulic relationship exists between unionization and inequality. Countries that have higher unionization rates tend to have lower patterns of economic inequality. And as unionization rates decline, inequality tends to rise.

In Canada, the political impulse to reform labour laws has been waning since the early 1990s, shortly after Canadian unions had reached their numerical zenith. As income and wealth inequality levels rose, labour’s share of the Gross Domestic Product has declined to record lows in the post-war era, wages have stagnated and most of the economic productivity gains over the past 25 years have been captured by those at the very top of the income scale. One significant explanation for the eroding levels of unionization in Canada has been the country’s stagnant labour laws. In particular, statutory changes to the union certification process in a number of Canadian jurisdictions has diminished the ability of unions to protect their representational levels. Empirical social science suggests that labour laws matter, not only for unionization levels, but as an important tool to enhance economic egalitarianism.

rb

Yesterday's NPR Story on Employment / Consumer Arbitration

Thanks to Laura Cooper for calling to my attention this article on yesterday's NPR about how some companies use arbitration as a method of avoiding -- rather than resolving -- legitimate claims.  The story begins with the claim of Jamie Leigh Jones, who was raped while an employee of Halliburton in Iraq, and then describes how the National Arbitration Forum "fires" arbitrators who rule the "wrong" way in credit card disputes.  See Wade Goodwyn, Rape Case Highlights Arbitration Debate.  The photo, from NPR, is of Ms. Jones at a 2007 news conference.

rb

Nevada Grants Parental Leave for School Events

Nevada has extended FMLA-type leave to parents, guardians, and custodians of children to attend school events or to volunteer at school. The leave is not a large amount, four hours per year to be taken in a minimum of 1-hour segments, and like the FMLA it need not be paid and is only required of employers of at least 50 employees. The new statute (which can be found here) also protects employees from retaliation for exercising rights under the statute and provides that the State Labor Commissioner can restore lost wages or benefits, award damages in the amount of those lost wages or benefits, and order reinstatement.

MM

Peggie Smith on Labor Protections for Home Health Care Workers

Peggie Smith (Iowa) has written a legislative policy brief on labor protections for home health care workers for Direct Care Alliance, and advocacy group for direct care workers. From the description of the brief,

In Protecting Home Care Workers under the Fair Labor Standards Act, (PDF) the second in a series of Direct Care Alliance policy briefs, Smith says the decision “threatens to destabilize the home care industry, erode the precarious economic status of home care workers, and undermine the quality of care that they provide to home care clients.”

She outlines two approaches the federal government could take to reverse the ruling:
1. Amend the FLSA to explicitly include home care workers; and
2. Revise Department of Labor (DOL) regulations to significantly limit the reach of the companionship exemption.

MM

NPR Quotes Stone on Boston Globe

.

.
Congratulations to Kathy Stone, who was quoted on NPR this morning on the Boston Globe saga described below. 

rb

Newspaper Guild Narrowly Rejects Boston Globe Agreement

The tentative agreement between the Boston Globe and the Newspaper Guild that we posted on last month is no more.  Today, union members rejected the agreement by a 277-265 vote, despite a threat from Globe owner, the New York Times Co., that rejection would lead to a unilateral 23% pay cut.  According to the New York Times (ironic, I know):

Union officials had said that they would fight any such pay cut and they hoped that it might, instead, lead to a fresh round of negotiations that would produce a package more amenable to the union’s membership.. . .

The company said that a provision to reopen the guild contract gave it the right to impose the 23 percent pay cut in the event of rejection of the wage and benefit cuts. But the union says the company has no such right, and many opponents of the package said the company was bluffing. The guild says it would respond to a pay cut with a complaint to the National Labor Relations Board. . . .

Two months ago, the company threatened to close The Globe unless unions agreed to $20 million a year in wage and benefit concessions, and to give up lifetime job guarantees for about 400 employees. Of that savings, the company sought $10 million from the guild, by far the largest union, representing about 670 workers, most of them in the newsroom and with some in advertising and other departments.

After reaching tentative settlements with most of the unions last month, company executives set aside the shutdown threat, though they said it remained a possibility if they could not find a way to pare expenses. The Globe, the largest and most influential news organization in New England, would be the largest American paper in memory to go out of business, and would make Boston the first major city to lose its primary paper.

The package that was rejected included a wage reduction of about 8.4 percent, a one-week unpaid furlough equivalent to a pay cut of 1.9 percent, the elimination of company contributions to retirement plans and an array of other concessions. Many of the employees have complained that the package could have been structured more palatably, and that management was not sharing equally in the pain, which the company disputes.

Looks like we may have a new impasse question to ponder soon.

-JH

The Labor Lawyer Finds New Home at Minnesota

The winter weather went from bad to worse for The Labor Lawyer, which has moved from Syracuse under Robert Rabin (left) to Minnesota under Laura Cooper and Stephen Befort.  Here's the formal announcement:

The American Bar Association, Section of Labor and Employment Law, has selected Professors Stephen F. Befort and Laura J. Cooper of the University of Minnesota Law School as the new co-editors of The Labor Lawyer.  The journal, with a circulation of 27,000, publishes articles with balanced discussions of developments in all areas of labor and employment law of interest to practicing attorneys.  The Labor Lawyer conducts a national student writing competition and will, in 2010, commence publication of notes by University of Minnesota Law School students.  The editors welcome submission of short articles (generally not more than 40 pages double-spaced) from professors and practicing attorneys.  Article submissions or questions about the journal may be directed to:

Professors Stephen F. Befort, 612-625-7342, befor001@umn.edu
Laura J. Cooper, 612-625-4320, lcooper@umn.edu
University of Minnesota Law School
229 Nineteenth Avenue South
Minneapolis MN 55455

A special thanks to Robert Rabin for editing The Labor Lawyer for as long as I can remember.  The journal is a fantastic link between academia and the practicing bar -- it's a terrific resource for all of us.  Congratulations to Laura and Steve for bringing The Labor Lawyer to Minnesota.  They've been working hard over the last several years to make UM's labor/employment program one of the best in the country, and their hard work is paying off.

rb

Long on the Thompson Retaliation Decision

My colleague Alex Long (Tennessee), who has written quite a bit about retaliation issues was kind enough to put together a nice analysis of a recent Sixth Circuit decision raising interesting retaliation issues, Thompson v. North American Stainless.  According to Alex:

In an en banc opinion handed down Friday, the Sixth Circuit Court of Appeals held that an employee who is allegedly fired because his fiancée had filed a charge of discrimination against their shared employer does not have a retaliation claim under Title VII.  The plaintiff, Thompson, alleged he had been fired because his fiancée, Regalado, had filed a charge of sex discrimination with the EEOC. This was the sole basis of his retaliation claim.  Joining the Third, Fifth, and Eighth Circuits before it, the Sixth Circuit held in Thompson that the plain language of § 704(a) precluded such claims of third-party or associational retaliation.   

This issue has come up surprisingly often in recent years.  Under § 704(a), it is unlawful for an employer to retaliate against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  So far, most courts (and all of the federal courts of appeal to have decided the issue) have concluded, based on the plain language of § 704(a), that the only employees who are entitled to statutory protection from retaliation are those employees who have actually engaged in protected activity. It is not enough that the employee is fired because a friend or relative engaged in the protected activity.

There are several noteworthy features of the Thompson decision:

(1)    There seemed to be agreement among the majority and dissenters that Regalado (the employee who filed the original discrimination charge) might have had a retaliation claim based on the firing of Thompson.  Firing a loved one in retaliation for filing a discrimination charge would likely dissuade a reasonable worker from making or supporting a charge of discrimination.

(2)    If there could be a do-over, I’d bet the plaintiff’s attorney would allege that Thompson actually engaged in protected participation conduct.  Thompson helped Regalado prepare and file her discrimination complaint and participated in an EEOC in an interview with the EEOC regarding the matter.  That sounds like protected participation conduct.

(3)    The Sixth Circuit rejected any suggestion that even though Thompson did not outwardly express any opposition to the employer’s alleged discrimination to the employer, Thompson nonetheless engaged in the type of “silent opposition” contemplated by Justice Alito in his concurring opinion in Crawford v. Metropolitan Government of Nashville when he helped his fiancée file her discrimination claim.  In his concurring opinion in Crawford, Alito questioned whether such unexpressed opposition constituted opposition conduct under § 704(a) but noted that the issue was not before the Court.  The majority opinion in Thompson cited Alito’s concurrence in support of its conclusion that Crawford’s holding did not cover Thompson’s unexpressed opposition in this case.  Therefore, the Sixth Circuit seemed to reject the idea that “silent opposition” can qualify as protected opposition.

(4)    One problem with the plaintiff’s theories in points (2) and (3) above is that even if Thompson’s conduct could be considered protected, he would still have to establish causation, i.e., that the employer fired him because of his assistance or participation in the EEOC proceeding or because of his opposition to the employer’s alleged discrimination.  One problem for Thompson specifically was that he never told the employer he had engaged in these actions.  Another is that it I would guess that the main reason the employer fired Thompson wasn’t because he had helped his fiancée prepare her discrimination charge; it was because it wanted to get back at the fiancée (Regalado) for having filed the charge in the first place.  In other words, the target here was Regalado.  So, there is potentially a causation issue in many of these third-party retaliation cases

(5)    How can that causation problem be overcome?  There are at least two possibilities, both of which the Sixth Circuit addressed in Thompson:

(a)    Allow, as Noah Zatz has suggested, plaintiffs like Thompson to proceed directly on the theory that they are individuals who have been aggrieved by the employer’s actions.  While the language of § 704(a) defines what kind of employer activity is prohibited, the statute also authorizes a court to award relief to “an aggrieved person.”  Although Thompson may not have engaged in protected activity (or at least he didn’t allege it), he was nonetheless aggrieved by the employer’s act of retaliating against his fiancée, who had actually engaged in protected activity.  The majority opinion quickly glossed over this issue, but Judge Rogers, in a separate concurrence, argued that the “aggrieved person” language should not be expanded to include employees like Thompson, who were not the “intended beneficiaries” of the Title VII.  Not surprisingly, the dissent took issue with that conclusion.

(b)    Reinstate, with back pay, the third party who was fired in retaliation for another employee’s protected activity.  If, as both the majority and dissent seemed to agree, Regalado had a viable retaliation claim based on Thompson’s firing, reinstatement of Thompson might be an appropriate remedy.  Courts have upheld a similar remedy in the NLRB context.  In her dissent, Judge Moore raised this possibility, but noted that it was unclear whether Regalado could have sued to have Thompson reinstated.

This was the first major decision post-Crawford to discuss some of these issues.  I’m not sure if the Supreme Court would want to grant cert in this matter.  There are enough procedural and tangential substantive issues to make things messy.  Eventually, however, the Court may be called upon to step in and address this issue if Congress does not do so first.

If you want to read more about third-party retaliation issues, you can read Alex's article on the topic, which he was too humble to mention.  Also, if you're going to be at SEALS this year, you'll want to catch the panel on Crawford, where you can hear more from Alex and others on retaliation-related issues.

-JH

Recently Published Scholarship

Articles

• Jeffrey A. Parness, Greater Employment Equalities in the New South Through New Constitutional Guarantees, 3 Charleston L. Rev. 461 (2009).
• Stacy M. Hickox, Transfer as an Accommodation: Standards from Discrimination Cases and Theory, 62 Ark. L. Rev. 195 (2009).

Student Scholarship

• John F. Griffee, Against the Grain: The Arkansas Supreme Court Resists the Judicial Movement to Enforce Mandatory-Arbitration Provisions in Employment Contracts, 62 Ark. L. Rev. 381 (2009).
• Michael A. Cabin, Labor Rights in the Peru Agreement: Can Vague Principles Yield Concrete Change?, 109 Columbia L. Rev. 1047 (2009).
• Gretchen S. Futrell, Bring Your Dogma to Work Day: The Workplace Religious Freedom Act of 2007 and the Public Workplace, 7 First Amendment L. Rev. 373 (2009).

rb