September 12, 2009
Symposium: The Creeping Legalism of Labor Arbitration
The University of Missouri's Center for Dispute Resolution will sponsor, on October 9, 2009, a symposium on The Creeping Legalism of Labor Arbitration. The all-star cast includes Dennis Nolan (as keynote speaker), Lisa Bingham, Laura Cooper, Peter Feuille, Stephen Hayford, Ann Hodges, Michael LeRoy, and Marty Malin. Here's a description:
As a method of dispute resolution, labor arbitration falls somewhere in between non-binding forms of dispute resolution and more formal dispute resolution processes. This "in-between" status has made it difficult at times for the participants in labor arbitration to decide what role the law and legally related constructs should play in labor arbitration.
For many years, practitioners and scholars intensively debated the extent to which labor arbitration was becoming too legalistic. While little attention was paid to this issue in the 1990s, recent developments have made the "creeping legalism" issue particularly relevant. First, the increased regulation of the employment relationship has placed labor arbitrators in a position to interpret issues of external law when deciding collective bargaining disputes. Second, the proliferation in the use of individual employee rights arbitration, which by nature is more legalistic, might have affected the practice of labor arbitration. To the extent that some of the same players participate in both, labor and employee rights arbitration, one would expect the legalistic character of individual employee rights arbitration to spillover to labor arbitration, and perhaps other forms of alternative dispute resolution. The recent United States Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett, which holds that a bargaining contract provision requiring employees to arbitrate age discrimination claims is enforceable and thus precludes later litigation of such claims, accentuates the importance of this issue.
This symposium seeks to reignite the discussion on the legalization of labor arbitration. The presenters will explore the history of "creeping legalism" and evaluate its effect on the practice of labor arbitration. The presenters will also assess the effect of the legalization of labor arbitration in other forms of dispute resolution, as well as identify future trends.
SSRN Top-10 List of Recent Employment & Labor Downloads
- Guido A. Ferrarini, Niamh Moloney, & Maria-Cristina Ungureanu, Understanding Directors' Pay in Europe: A Comparative and Empirical Analysis (273).
- Richard L. Kaplan, Nicholas J. Powers, Jordan Zucker, Retirees at Risk: The Precarious Promise of Post-Employment Health Benefits (214).
- Daniel Shaviro, The 2008-09 Financial Crisis: Implications for Income Tax Reform (152).
- Mathias M. Siems & Simon Deakin, Comparative Law and Finance: Past, Present and Future Research (128).
- Aravind M.S. & Bikram Pattanaik, Assets Under Management (AUM) for Various Kinds of Funds - Pension Funds, Hedge Funds, Private Equity and Mutual Funds (127).
- David I. Walker, Evolving Executive Equity Compensation and the Limits of Optimal Contracting (97).
- Claire Kilpatrick (photo above), British Jobs for British Workers? UK Industrial Action and Free Movement of Services in EU Law (85).
- Jack VanDerhei, How Would Target-Date Funds Likely Impact Future 401(K) Accumulations? (81).
- Janice Kay McClendon, The Death Knell of Traditional Defined Benefit Plans: Avoiding a Race to the 401(k) Bottom (76).
- John Monahan, Laurens Walker, & Gregory Mitchell, The Limits of Social Framework Evidence (74).
September 11, 2009
Secunda Cited in Washington AG Opinion
The Washington State Attorney General just issued an Opinion finding that "[t]he National Labor Relations Act would preempt the provision of a proposed bill which would prohibit employers from requiring employees to attend certain meetings at which matters relating to 'labor and other mutual aid organizations' are discussed." The Opinion cites to -- and expressly disagrees with -- Paul Secunda's article on the topic. But, of course, Oregon goes Paul's way, and has prohibited captive audience speeches.
September 10, 2009
En Banc Denied in Fed Ex Home Delivery v. NLRB
As we reported earlier, the NLRB recently sought en banc review of the D.C. Circuit's Fed Ex Home Delivery v. NLRB decision, in which the court created a test for the employee versus independent contractor question that relied almost exclusively on the worker's entrepreneurial opportunity, rather than the typical Darden factors. Despite some signs that the full court would hear the case, they recently denied en banc, falling one vote shy of the five votes needed for en banc review.
Personally, I'd like to see the Board seek cert. in this case. The Board has been understandably reticent to take cases to the Supreme Court, but this case is significant enough and far enough off the reservation to warrant a hard look at cert.
The Lost Decade
The NY Times Economix blog recently cited recent Census data on real wages over the last decade, and the news is depressing. The average household makes less than it did ten years ago (inflation adjusted), falling from $51,295 in 1998, to $50,303 in 2007. This beats the previous record of seven years without a rise since the 1930s.
The blog cites slow economic growth and rising income equality. So, don't expect to see this trend change anytime soon.-JH
Fifty Most Powerful Women in BusinessFortune has released its list of the fifty most powerful women in business. The web article includes this line: "In 1998 when the Most Powerful Women in Business list premiered, just two of our honorees ran Fortune 500 companies. This year 13 do." That's progress, but at a rate of essentially one new Fortune 500 company per year. At this rate, women will have equal-ish representation (what we might expect by chance) in only 112 more years!
ENDA and the Meanings of our Terms
Jillian Weiss at Transgender Workplace Diversity has this great post on the current version of ENDA, what it contains, and how it defines its terms, in anticipation of arguments that will be marshalled against it. Dr. Weiss focuses, in particular, in the post on claims that granting legal protection to the status of sexual orientation will inevitably grant protection to those who are pedophiles. She writes,
The most common argument [against the bill] is that ENDA's terms are not sufficiently well-defined, leading some to be concerned that it could protect pedophiles and others whose sexuality is criminal in nature.
This argument assumes that "sexual orientation," as defined in ENDA, is similar to more ambiguous phrases, such as "sexual preference" or "sexual lifestyle." However, the term used, "sexual orientation," does not include sexuality of a criminal nature.
To some extent, arguing that "sexual orientation" includes any type of "sexual preference" is a bit like arguing that laws protecting against race discrimination will include race car drivers.
She debunks any link between male homosexuality and pedophilia, deftly using the definition of "homosexual panic" to suggest that's what's happening to the critics. Additionally, she points to the example of California as evidence that lawsuits will not rise significantly. As she points out, in one of the biggest states, with some of the strongest protections, only 4% of discrimination claims were sexual orientation lawsuits. One person in 46,000 filed suit. Those are tiny numbers.
The post is a great read, and I recommend it if you are at all interested in the topic.
OSHA's New Site Specific Targeting Program
From OSHA Trade News: Nursing homes, manufacturing establishments among nearly 4,000 worksites on inspection list under OSHA's Site-Specific Targeting 2009 program:
The Occupational Safety and Health Administration's Site-Specific Targeting 2009 (SST-09) program will focus enforcement efforts on nearly 4,000 high-hazard worksites on the agency's list for comprehensive safety inspections. The program helps OSHA direct enforcement resources to workplaces such as manufacturing and nursing homes where the highest rate of injuries and illnesses occur.Changes to this year's program include dividing the primary list of establishments slated for inspection into three sectors - manufacturing, non-manufacturing, and nursing homes. Rather than using one rate for all establishments, OSHA established minimum injury and illness rates for each group, allowing the agency to inspect even more establishments that exceed the minimum rates specific to that sector. Additionally, some facilities that did not answer an OSHA Data Initiative survey will be added to the inspection list. The agency's intent is to deter employers from not responding to avoid inspection.
I hope this is a beginning by the new OSHA administration to depend less on self-regulatory programs, like VPP, and more on out and out enforcement of the most hazardous workplaces.
Stupid Employer Tricks - Take 62
There is dumb and than there is "boneheaded." I think this article has it right that this qualifies as the latter:
In a boneheaded "safety drill," a behavioral health center sent a masked gunman to demand Oxycontin from a pharmacist's assistant on Christmas Eve - and she says the terrifying incident left her with depression, anxiety and post-traumatic stress disorder.
Babette Perry, who is 4 feet 11 inches tall, says she had worked at Hampton Behavioral Health Center for more than 8 years when her bosses sent the 6-foot-tall gunman to her in an unannounced "safety drill." He actually was another worker from the mental health service's hospital.
Perry says the "gunman" told her he was holding Hampton's human resources director hostage, and Perry could not call for help because the phone line was dead.
Perry says she was never warned about or trained on how to handle such a situation.
Suffice to say, I would doubt that this employer will be doing these types of safety drills in the future.
How about next just annoucing to employees that there is a gunman in the building and practice actual techniques that would be taught in safety seminars?
Hat Tip: Dean Cyndi
Fink on the State of American Labor Law
Eric Fink addressed a group of Mitchell Community College students and staff on Tuesday about the issues labor unions are facing in terms of the Employee Free Choice Act, unity and the status of the National Labor Relations Board.
The Mitchell Community College Diversity Task Force organized the lecture, titled "The State of the Unions: U.S. Labor Today."
Less than a year ago, following the presidential and congressional elections, many predicted a resurgence of the labor movement, Fink said.
Membership has been on the decline since it peaked in the 1950s, when unions represented close to 50 percent of all workers, Fink said. Now, less than 10 percent of the population belongs to a union.
Fink admitted he was pro-labor union and a bit partisan on the matter. He has represented several unions and employees suing unions.
I love the line about Fink being a "bit partisan." Yeah, and the Pope is a "bit Catholic."
Atleson's Work Featured in Buffalo Law Review
Here are the contents of that edition of the Review:
Symposium on James Atleson, Values and Assumptions in American Labor Law, A Twenty-fifth Anniversary RetrospectivePS
Introduction: James B. Atleson and the World of Labor Law Scholarship Dianne Avery and Alfred S. Konefsky
Values and Assumptions of the Bush NLRB: Trumping Workers' Rights Wilma B. Liebman
Class Conflicts of Law II: Solidarity, Entrepreneurship, and the Deep Agenda of the Obama NLRB James Gray Pope
The Value of Values and Assumptions to a Practicing Lawyer Virginia A. Seitz
Some Personal Observations About Values and Assumptions:
What Can Jim Teach Wilma and the Board?
Robert J. Rabin
Unexpected Convergence: Values, Assumptions, and the Right to Strike in Public and Private Sectors, 1945-2005 Joseph A. McCartin
Still Unjaded: Jim Atleson’s Twenty-first Century Turn to International Labor Law Lance Compa
The Hollowing Out of Corporate Canada:
Implications for Transnational Labor Law, Policy and Practice Harry Arthurs
Transnationalizing the Values and Assumptions of American Labor Law Kerry Rittich
September 9, 2009
Harkavy on SCOTUS 2008 Term
A Silver Lining to the Gross ADEA Supreme Court Case Debacle?
Thanks to Ross Runkel of Employment Law Memo fame for bringing to my attention one of the first circuit court cases to interpret the meaning of the Supreme Court's Gross ADEA case (Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009)). You might recall that that decision adopted the dissent's approach in Price Waterhouse to causation in mixed motive ADEA cases.
In Geiger v. Tower Automotive (6th Cir 09/04/2009), the Sixth Circuit may have limited some of the damage inflicted by Gross on ADEA plaintiffs. In Geiger, an employee sued under the ADEA for an allegedly discriminatoy RIF. Although the employee lost on summary judgment and the Sixth Circuit affirmed (not that unusual, I guess), the court discussed the impact of Gross on ADEA cases of this type.
As described by Ross:
1) The Court held in Gross that “[the] burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Thus, under Gross, an employee must establish causation under a “but for” (rather than motivating factor) standard. The court noted that Gross overruled 6th Circuit precedent to the contrary on this issue.
2) Gross expressly declined to decide whether the McDonnell Douglas burden-shifting framework applies to circumstantial evidence cases under the ADEA. The court concluded that “the McDonnell Douglas framework can still be used to analyze ADEA claims based on circumstantial evidence.”
It is the second part of this decision that gives employment discrimination plaintiffs some hope, especially because the court also noted that the 3rd and 7th Circuits (the only other circuits that have addressed this issue post-Gross) have arrived at the same conclusion.
Whoever thought we would be looking at adherence to the McDonnell Douglas framework as a good thing?
In NLRB v. Consolidated Bus Transit, he Second Circuit recently enforced an NLRB order to provide backpay for a bus driver who was fired after failing a an exam that the employer forced him to take in retaliation for his union activities. The case has some nice facts--nice from the point of view of someone using them as hypos in class--on the problems with employers subjecting employees to tests or surveillance that might otherwise be unlawful, if they hadn't been motivated by protected activity. The court also approved of the Board holding the employer to its documents to the Board, in which it said that the employee was terminated, not temporarily suspended as it later argued.
Finally, the court agreed with the Board that Anheuser-Busch did not prevent a backpay award. The court noted that the employee here, unlike in Anheuser-Busch, had been targeted for his union activity and the employee's problems were created by the employer's unlawful retaliation (forcing him, and him alone, to take an exam), unlike the the drug use in Anheuser-Busch that was merely discovered in an improper fashion. These points are important. Although they had long been part of the Board's precedent, Anheuser-Busch left open whether they would survive.
Hat Tip: Bill Herbert
Zelinsky Favors Death Panels
Zimmer, Sullivan, & White on Employment Discrimination
Congratulations to Michael Zimmer, Charles Sullivan, and Rebecca Hanner White on the publication of their book Employment Discrimination: Selected Cases and Statutes. I know the book is published because I received a review copy in yesterday's mail. I can't find it, though, on Wolters Kluwer's web site (which can only be described as pitiful when it comes to trying to locate a book), but the book is available on Amazon.
September 8, 2009
Rise in Unemployment Negatively Correlated With Support for Unions
Have to admit that I was a little taken aback when I saw this post (and chart) from Nate Silver at 538.com:
Gallup recently found sympathy toward labor unions is at an all-time low, at 48 percent. but then again, unemployment is close to its post-WWII highs. Gallup did not happen to ask this question in late 1982 or early 1983, when unemployment exceeded 10 percent. They did ask in August 1981, when unemployment was up to 7.4 percent and rising rapidly, and at that point support for labor was at 55 percent, which was the lowest figure it had achieved before this year's survey.
The regression line finds that, for every point's worth of increase in the unemployment rate, approval of labor unions goes down by 2.6 points. Alternatively, we can add a time trend to the regression model, to account for the fact that participation in labor unions has been declining over time. This softens the relationship slightly, but still implies a decrease in approval of 2.1 points for unions for every point increase in unemployment. Both relationships are highly statistically significant.
So why does support for labor unions go down when unemployment rates rise? Here are some possibility, but would love to hear other thoughts from the reader:
1. The Blame Game: "It is because of unions and their unreasonable demands for higher wages and benefits that American companies are losing jobs to global competition."
2. We Need More Unions: "The decrease is union support has actually caused higher unemployment rates, not vice versa. If there were more supports for union, we would have a large middle class, greater consumer spending, and more jobs for everyone."
3. Need More Safety Nets: "Unions have shot themselves in the foot. Rather than working for saftey net legislation like their European peers, unemployment means that those unemployed blame the unions for not helping them negotiate this difficult economic climate."
4. Resentment of Unions: "When unemployment is high, the non-unionized working class resent unions for giving their members greater job security while they're left out in the cold."
There are many more explanations/theories obviously, so please provide your own in the comments.
September 7, 2009
Happy Labor Day!!!
September 6, 2009
Mainstream Media Discovers Dysfunction at the NLRB
Another Labor Day, another year of dysfunction in the agency that's supposed to protect workers from unfair labor practices and referee clashes between unions and management.
The enduring stalemate at the National Labor Relations Board, the longest in its history, comes as evidence that elections don't always settle political tugs of war. Ten months after the election of a president and Congress from the same party, no end is in sight to the deadlock.
Decisions are stalled on dozens of disputes that could set labor-management policies for decades to come. Can employers prohibit employers from using the company's e-mail system to send union-related messages? Where may union members distribute literature at work sites? What about organizing a union by simply signing cards instead of having a secret-ballot election? . . . .
With just two members, the board has ruled on more than 480 cases in which the chairwoman, Democrat Wilma Liebman, and Republican board member Peter Schaumber can agree. They have put off dealing with about 50 more contentious cases that are being closely watched by both business and labor . . . .
Even the "pure vanilla" cases are not without dispute. Earlier this year, the U.S. Court of Appeals for the D.C. Circuit threw into doubt the validity of every decision the board's two members have issued since January 2008. The court said federal law does not permit the board to act without a quorum of three members, a ruling that only adds to the uncertainty.
At least two other federal appeals courts have reached the opposite conclusion, though, and the Supreme Court is expected to weigh in to resolve the split. Meanwhile, the agency is continuing to issue decisions.
It's a good thing that the only thing at stake is the livelihood of employees throughout the country.
Half a Century or so of History of Macroeconomic Thought
I have to confess that economics is a subject that I have trouble with. Sure, I took it in college, and I've read my share of law and econ, but I always had this nagging feeling that I wasn't getting it. That's why I found today's article by Paul Krugman in the New York Times Magazine helpful. Writing in plain English, he describes the history of the main schools of economic thought in the United States, and the context of the current disagreements over the recession, its causes, and government stimulus. I highly recommend it if you, like me, tend to glaze over at the merest hint of economics jargon. And even if you don't.