July 24, 2009
Secunda Returns to Workplace Prof Blog
Attention School Principals: Join Foodfights at Your Own Peril!
I don't make this stuff up (via CBSNews):
Wells said earlier this month that she jumped onto what she called "a dog pile" of four or five students while attempting to stop a food fight.
Wells said she jumped on the pile to relieve the tension. She said she was back on her feet before you could count to one.
She said it was all in fun.
Retroactivity of ADA Amendments
In a recent decision, the D.C. Circuit held that the new ADA Amendments should not be applied retroactively. The plaintiff in Lytes v. WASA basically argued that the amendments merely clarified the law and mandated broad coverage; therefore, the presumption against retroactivity should not apply. But that argument couldn't get past the effective date used in the amendments. As the court held: "By delaying the effective date of the ADAA, the Congress clearly indicated the statute would apply only from January 1, 2009 forward."
Pleading Discrimination Claims After Iqbal & Twombley
Here's a guest post by Joe Seiner (South Carolina):
It has been a busy time for civil procedure professors recently, as the Supreme Court significantly altered the pleading standard for all civil litigants in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007). The Iqbal and Twombly decisions replace the relaxed pleading standard from Conley v. Gibson with a more rigorous “plausibility” requirement. Thus, a civil plaintiff must now plead enough facts in the complaint to state a plausible claim to relief. Those of us focusing more on the employment discrimination arena than on the intricacies of civil procedure should not let these changes go unnoticed.
This week, an interesting piece in the New York Times discussing Iqbal and Twombly noted that the decisions will make it “much easier for judges to dismiss civil lawsuits.” The article highlights employment discrimination plaintiffs, noting that these claimants will face particular difficulty in alleging their claims after these Supreme Court decisions. Though there is significant debate as to whether the plausibility standard actually raises the pleading bar at all (the Twombly decision itself says no), my research in this area (here and here) suggests that the decisions have, at a minimum, provided a significant amount of confusion for Title VII and disability plaintiffs. And, it is fairly clear that in specific instances district court judges have already used the plausibility standard to dismiss employment discrimination claims that should have been permitted to proceed.
This issue has not escaped the attention of Congress. Yesterday, Senator Arlen Specter introduced legislation calling for a return to the pleading standards of Conley. It is difficult to forecast whether this legislation will get any traction. However, it is clear following Iqbal and Twombly that the new pleading standard directly impacts employment discrimination cases, making it more difficult for these plaintiffs to adequately plead a case. In my view, the best way of avoiding the complexities and pitfalls of the plausibility standard would be for the courts to adopt a unified pleading model for employment discrimination claims. Stay tuned, however, to see how Congress and the lower courts address the controversial Supreme Court decisions.
11th Annual National Law Students Workers' Rights Conference
Mary Moffa, Executive Director of the Peggy Browning Fund, has announced that the annual conference will be held October 16-17, 2009, in Silver Spring, Maryland. Each year this conference brings together law students, experts, and practitioners from all over the nation to discuss workers' rights laws in a thought-provoking, stimulating, educational environment. Here's a conference Brochure and Registration Form. More information about the conference is available at The Peggy Browning Fund website
Several of our students have attended over the past years, and all have raved about the experience.
A Civil Rights Act of 2010?
Minimum Wage Up to $7.25
Effective today, the federal minimum wage is $7.25. Some state minimum wage laws exceed the federal rate. Here's an interactive map of state minimum wage rates -- click on the state to see that state's minimum wage. For employers, here are several downloadable minimum wage posters from the Department of Labor.
July 23, 2009
Whistleblowing in Kenya: The Story of Joseph Githongo
Thanks to friend of the blog, William Herbert, for bringing to my attention this moving and inspirational story about the whistleblower czar in Kenya. Yesterday, I blogged about a Russian whistleblower who was fired and sued for bringing government corruption to his bosses' attention.
Here's a few of the things you learn about Kenya and whistleblowing in the article by Joshua Hammer entitled, "Rooting Out Evil" in Sunday's New York Times Book Review about Michela Wrong's new book, “It’s Our Turn to Eat: The Story of a Kenyan Whistle-Blower.” As the article explains, Wrong’s subject is John Githongo, a newspaper journalist who became Kenya’s first anticorruption czar.
Wrong provides a damning account of the role played by the major donors to Kenya, including the World Bank and Britain’s Department for International Development, whose top officials reacted with indifference after Githongo came forward with his evidence. Kenya’s impressive economic expansion under Kibaki and its loyal support for the war on terror contributed to their reluctance to challenge the status quo. (Wrong points out that the 6 percent annual growth rate did little to improve the lot of Kenya’s impoverished masses.) So did the officials’ cozy relationships to the country’s political elite. The World Bank’s representative rented a villa from Kibaki in the plush Muthaiga neighborhood, a conflict of interest that went unremarked on by the organization’s own auditing team. As Stephen Brown, associate professor of political studies at the University of Ottawa, tells Wrong, “the donors’ primary concern appeared to be the avoidance of any path that could lead to a breakdown of the political and economic order. . . . Donors actually forestalled fundamental change.” . . . .
Githongo remained fearful of retribution from the officials whose mischief he had exposed. Wrong’s gripping, thoughtful book stands as both a tribute to Githongo’s courage and a cautionary tale about the dangers of challenging a thoroughly corrupted system.
In short, not much difference for whistleblowers in Russia or Kenya. I would be interested in learning from readers about stories of whistleblowing from other parts of the world. As flawed as the system is in the United States, do we nevertheless have one of the best ones, at least relatively speaking?
In any event, check out the book. It sounds like a great read.
Another Siren Call for OSHA Reform: Occupational Death at McDonald's Supplier
So as the OSHAct continues to be a dysfunctional law and the current administration has not yet appointed a new OSHA administrator, it is time to remind all you blog readers out there how dangerous it is to be an employee in the United States of America.
Los Angeles County sheriff's detectives say the body of an employee was found early Tuesday at Golden State Foods in the City of Industry, an east Los Angeles suburb. Investigators believe her death was accidental.
The Pasadena Star-News quoted Craig Harvey, a spokesman for the Los Angeles County Coroner, as saying that Ana Maria Vital of La Puente "sustained crushing injuries by some boxing machinery after attempting to remove a box that had been lodged in the machinery."
I remember a time when the excellent Confined Space blog, run by Jordan Barab, would keep track on a weekly basis of all the people who would die in the American workplace. The nature and frequency of these incidents always shocked me (as this current example does).
Now that Jordan is the Acting OSHA Administrator, I hope these examples and others like them give him and others who care about workplace safety and health to take dramatic action to improve the OSHAct. Not only in the inspection of plants and enforcement of standards, but also in being able to promulgate 21st centry standard in the first place.
I don't know if I can take another $10,000 fine for a travesty like this one.
Court Overturns Bankruptcy Order Allowing Airline to Reject CBA
Today's Daily Labor Report (subscription required) describes Teamsters v. Frontier Airlines, No. 09-343, in which the Federal District Court for the Southern District of New York found that a bankruptcy court had improperly applied Section 1113 of the Bankruptcy Code in permitting Frontier to walk away from its collective bargaining agreements with its technicians and other workers. That section of the Bankruptcy Code permits a bankruptcy court to allow a debtor to reject CBAs, but only if rejection is necessary to successful reorganization and the debtor has previously attempted to negotiate with the union in good faith. The District Court found that contract modification proposals and disclosures that Frontier made after it had requested rejection didn't count towards the good-faith requirement -- good faith requires that proposals and disclosures be made before petitioning the bankruptcy court for permission to reject the CBA.
Two-Member 10(j) Injunctions Upheld
Last year--when all the Laurel Baye mess was still on the horizon--we blogged about a challenge to the NLRB's ability to seek a 10(j) injunction with only two members (technically, it's the Board's authority to delegate to the General Counsel the responsibility of seeking a 10(j). The district court in Massey held that such delegation, even with two-members, was lawful. The Fourth Circuit has now affirmed that decision. The court held in part:
Nevertheless, Mammoth contends that § 3(d) only provides for delegation of certain "duties" and that the decision to seek § 10(j) relief constitutes a fundamental "power" that the Board cannot delegate. Mammoth attempts to distinguish the two terms, equating "duties" with prosecutorial functions and "power" with adjudicative functions, and then relies on the general rule that although the Board may delegate prosecutorial functions to the General Counsel, it may not assign away its core adjudicative functions.
The central question, then, is whether the ability to seek § 10(j) relief is prosecutorial or adjudicative in nature. This ability seems to us, as it has to all other courts, clearly prosecutorial: seeking § 10(j) relief from a district court adjudicates nothing. Whether the Board or the General Counsel petitions a district court for relief, the adjudicative function—the ultimate decision to grant relief—lies with the district court. Delegation of the prosecutorial decision to request relief does not interfere with the structure of the NLRA nor divest the Board of its adjudicative power. The Board may therefore lawfully delegate § 10(j) authority to the General Counsel pursuant to § 3(d) of the NLRA.
Sounds right to me.
July 22, 2009
A Different Firefighter Disparate Impact Case
A case that, at least superficially, is eerily similar to the facts of Ricci has turned out very differently. A S.D.N.Y. judge has just held that the New York City Fire Department had been using hiring tests that had a disparate impact on black and Hispanic applicants As part of the holding, the judge found that the tests had little relation to the job of firefighting. Although not directly related to the tests, a general statistic illustrates the problems in hiring minorities for the F.D.N.Y., which had about 3% black firefighters and 6% Hispanic fiefighters, despite each group consisting of approximately 27% of the city population.
The irony, of course, is that Ricci encourages cities like New York to keep such tests without questioning suspicious results. Indeed, the city had already stopped using those tests, but in a post-Ricci world, you've got to expect more cities to simply stick with them. This result may be one of the biggest problems with the Ricci decision, as it flies in the face of the intent of the Civil Rights Act to actually encourage employers to keep tests that seem to be discriminating against groups.
And You Think Whistleblowers in the United States Got It Bad?
"Originally, I was not on any kind of a crusade. I was just doing my job as a scholar and as a teacher of professional ethics to would-be policemen," Mr. Groshev, 42, told CBS News over the phone from his hometown in Siberia. "But when I got the results of the poll, my hair stood on end. The situation was so horrible that I realized I had to report it to my superiors immediately."
The sociologist’s findings showed that only 3% of those polled had never used bribes to enter the academy or pass exams, while one third admitted to paying between 2,000 and 5,000 dollars in bribes for passing entrance exams without a problem. "And these are the people whose job will be to serve and protect!" Groshev almost shouted on the phone.
The bosses’ reaction was as sharp as it was bewildering. "Instead of dealing with the problem, they decided to deal with me." Before long, Groshev was "officially reprimanded for conducting the poll," subjected to a line-of-duty investigation and subsequently fired from his job.
Additionally, his bosses successfully sued him for "harming the professional reputation" of the school! Of course, there is an easy explanation for all of this: those in power benefit from the existing corrupt system. Not holding my breath, but wouldn't it be nice if democratic Russia did not follow the communist Soviet Union in wallowing in official corruption?
Well, if wishes were trees, trees would be falling . . . .
McClendon on ERISA and Same-Sex Benefits
Janice K. McClendon (Stetson), co-chair of the AALS Section on Employee Benefits, has posted on SSRN her article from a few years ago in the New Mexico Law Review: A Small Step Forward in the Last Civil Rights Battle: Extending Benefits under Federally Regulated Employee Benefit Plans to Same-Sex Couples. Here's the abstract:
All of these initiatives fall short, however, in the area of federally-regulated employee benefit plans. These plans, which include both pension and welfare benefit plans offered by private employers to their employees, are governed by federal regulatory schemes that do not recognize any rights for same-sex couples, regardless of whether couples have entered into same-sex civil marriages, civil unions or domestic partnerships.
The continuing failure to recognize same-sex couples for purposes of plan benefits and the special federal income tax treatment afforded to those benefits is in contravention of the enumerated goals of the Employee Retirement Income Security Act (“ERISA”). This federal regulatory scheme was designed to protect not only plan participants, but also participants’ spouses, dependents and beneficiaries through comprehensive federal regulation of employee benefit plans. Protection consistent with those goals is being denied to same-sex couples. The article examines state, county, municipal and private employer initiatives extending rights and benefits to same-sex couples and how those initiatives are negated in the area of federally-regulated employee benefit plans.
The article also analyzes recent federal and state court decisions challenging federal and state laws denying legal recognition to same-sex couples, and concludes that court decisions are unlikely to extend rights to same-sex couples in the area of federally-regulated employee benefit plans. Finally, the article recommends an amendment to the federal regulatory scheme that will afford benefits and tax advantages to same-sex couples consistent with ERISA’s goals. The recommended amendment is also palatable in that it confers rights under these plans to same-sex couples while avoiding the political “hot potato” of federal recognition of same-sex civil marriages or civil unions.
Good stuff and totally agree with Janice's analysis and argument. Of course, if the equal protection clause was appropriately applied and gays were allowed to marry, none of this would be necessary.
Apple, iPhone, and Big Brother
A tragic story from south China describing how the public face of Apple might be very different from how their own employees see them (via Yahoo!):
The case puts the spotlight on Apple, whose public face as maker of the wildly successful iPhone contrasts with its reputation for a highly secretive corporate culture . . . .
[A]ccording to a report in the influential Nanfang Daily, Sun, a 25-year-old product manager, became frantic after discovering that one of 16 prototypes of Apple's fourth-generation N90 iPhone had gone missing. The iPhone is Apple's hottest-selling device and the latest version is a well-kept secret.
Sun vented his growing frustration in text messages to his girlfriend and a former classmate, and tried to find the missing device, the Nanfang Daily said. But company officials from Foxconn's security division apparently got suspicious and raided his home.
The Yunnan native jumped from his 12th floor apartment the day after, according to the report.
OK, just China right? But notice that it was not the Chinese government raiding the employee's home, but its security division? Does this happen in the United States - overtly or covertly?
While I understand the need for measures to be taken to protect the secrecy of valuable products, clearly a line must have been crossed in this case, no? Or is this just a symptom of the type of society that Chinese workers labor in?
Sarcasm and Public Employment Don't Mix, Part Deux
Back in my previous blogging life, I wrote about a case by the 11th Circuit, Mitchell v. Hillsborough County, No. 05-12207 (11th Cir., Oct. 31, 2006), which involved a county employee who made satirical remarks about one of the country commissioners, and got fired for it.
Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname "Vagi" or "Gina"?
The 11th Circuit found that Mitchell's speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.
I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don't agree at all that this is not speech on a matter of public concern. As Robert [Loblaw] points out, that would be like saying Jonathan Swift's Modest Proposal was really about cannibalism.
Well, the humor of the federal courts has not improved in three years. Not even in my home town. Witness Milwaukee Deputy Sheriff's Association v. Clarke, No. 08-3298 (7th Cir., July 21, 2009). The case also concerns sarcastic remarks by a public employee:
The dispute in this case is what one’s mother might have in mind when she imparts the classic phrase, “Sticks and stones may break my bones, but words will never hurt me.” Apparently, Milwaukee County Sheriff David A. Clarke, Jr., did not take this childhood lesson to heart. In the summer of 2005, Sheriff Clarke posted on a roll-call bulletin board a quote that at least one deputy, Michael Schuh, considered an offensive challenge to his and his fellow officers’ courage. Schuh fired back by publishing a two-sentence statement challenging Sheriff Clarke’s courage. Sheriff Clarke, apparently afraid that words would hurt him, quickly responded by reassigning Schuh to a newly created mission in one of Milwaukee’s most crime-ridden neighborhoods . . . .
We are sympathetic to Schuh’s position, and we consider Sheriff Clarke’s response against Schuh to be excessive. But there are limits to the First Amendment’s protections when a public employee speaks, and because we find that Schuh was speaking on a matter of purely private concern, we agree with the district court that summary judgment in Sheriff Clarke’s favor was appropriate.
The statement, you wonder?
Deputy Schuh’s article mirrored Sheriff Clarke’s quote from Deuteronomy, with a few additions that Moses never uttered while outside of the Promised Land:
Union Member’s Response:
If you are afraid or you have lost your courage and need two deputies and a sergeant to escort you every time you fly in and out of the airport and patrol deputies to drive by your house when you’re out of town you should resign and go home! Then you would lift the morale of this whole department (a.k.a. office).
Now, the comment was clearly made to criticize the Sheriff's use of police personnel for his own personal business - what could be more about public concern than how the taxpayers money is being used by the Sheriff? Was the mere sarcastic nature of the remark dispositive in suggesting that the interaction between the Sheriff and his deputy was purely personal?
If the court had allowed this dispute to survive the Connick matter of public concern test, the next step would have been the Pickering balance of the public employee's right to free speech against the efficiency concerns of the police department.
My own take on this is that it is unlikely that this episode caused that much upheaval in the department since the Sheriff's practices were already well known. I would have been inclined to find the balance for the employee and held the Department at least liable for the Sheriff's conduct (whether the Sheriff could qualify for qualified immunity might be a closer question as far as individual liability).
In any event, and as I said three years ago, "One does not need to speak seriously in order to make one's publicly importantly point. Sometime satire is much more powerful and makes that point much more effectively."
Hat Tip: Victor Forberger
GINA and DNA Testing in Baseball
The New York Times is reporting on Major League Baseball's use of DNA testing on Latin American prospects. Apparently, the majority of testing is related to confirming prospects' ages; many of them say they are younger than they are and testing can identify a player's use of a another families' birth certificate. Bone scans and other medical screening has also been used for age determination. However, MLB has also started using these tests, including genetic testing, to look for past injuries or signs of future injury.
This is obviously going to create a problem under GINA, although most cases happened before it went into effect (issues that are discussed in recent article by Bill Herbert and Amelia Tuminaro). Stay tuned.
AAA, NAF Halt Consumer Debt-Collection Cases
Today's Wall Street Journal (subscription required) reports:
The American Arbitration Association said Tuesday it will stop participating in consumer-debt-collection disputes until new guidelines are established. Its decision came two days after another big group, the National Arbitration Forum, said it would stop accepting new cases as of Friday.
The NAF halted its consumer debt-collection cases only a week after the Minnesota attorney general filed suit against it alleging consumer fraud. The arbitration provider has been plagued by allegations that it had ownership and financial ties to the debt collection firms, and that it routinely dropped from its rosters arbitrators who ruled in favor of consumers. For NAF to have caved so quickly -- I'm betting there was smoking-gun evidence that NAF wants to bury.
This doesn't directly affect employment cases or other consumer cases, but may do so indirectly as Congress considers the pending Arbitration Fairness Act.
July 21, 2009
Social Framework Evidence
We posted earlier on Melissa Hart's (Colorado) and Paul Secunda's (Marquette) recent defense of social framework evidence in employment cases. Their article was a response to an earlier article criticizing such evidence by UVA professors John Monahan, Laurens Walker, and Gregory Mitchell. Those three authors have just posted on SSRN their response to Hart and Secunda, entitled "The Limits of Social Framework Evidence," which will appear in Law, Probability and Risk. The abstract:
ERISA as an Explanation for Drop in Securities Class Actions
The reasons behind the drop aren’t particularly hard to finger. According to this NLJ story, the decline is partly reflected in the fact that the largest financial firms — a big target of the latest wave of securities suits — were sued en masse in 2008, as the credit crunch and ensuing economic meltdown were in full swing. Another possible factor: securities-fraud suits tend to get filed in the wake of swift stock drops. While the market levels are still well down from highs hit in earlier in the decade, they’ve largely stabilized when compared to last year.
I want to suggest another possible explanation, first developed in this law review article back in 2006: What's Up on Stock Drops? Moench Revisited, 39 John Marshall L. Rev. 605 (2006). That article points out what I have often felt: ERISA breach of fiduciary class actions are easier to win than the securities class actions.
Here's what I wrote on this blog back in September 2008 about this:
I have written abut this type of stock drop litigation before. The issues at the forefront are how ERISA is overtaking securities as the litigation vehicle of choice by plaintiffs who suffer stock losses and how these cases almost never make it to trial because the firms being sued are forced to settle if certification of the class is granted by the court.
Given the financial pain being felt by everyone these days, and with little hope of an end being in sight, I would suspect courts to either cut down on certification of these classes or for a movement by the corporate lobby to amend ERISA to cut down on these types of suits.
These new empirical findings about securities suit convince more of this dynamic. It would be interesting to see whether the number of ERISA class actions have gone up this year. For more on this topic, see this article and my comments to it.