Friday, September 18, 2009
At the Adjunct Prof Blog, Mitch Rubenstein has a post on a Chamber of Commerce report that predicts what will happen under a new Obama Board (hint, the Chamber's not happy). Mitch has got the table of comments posted, which is a good reminder of just how much the previous Board moved things to the right. Even if the Obama Board simply moves things back a few years, we're due for another dramatic shift.
In what seems to be a trend (think The Boston Globe), the a company bidding for the bankrupt Chicago Sun-Times is having trouble getting the union's agreement to wage concessions. Employees rejected proposed cuts by a 83-22 vote. One interesting aspect to this from a labor law perspective is the following statement from the investor leading the bid:
Tyree told Reuters he did not plan to change the terms of the offer and would "probably not'" consider different terms if the union proposed any. "I put a proposal in there that I believe works. I know all the constituencies have to buy into it -- if they don't, I'll just move on," Tyree said.
As Alan Hyde, who gets the hat tip on this one, notes, employers used to be advised not to say that they wouldn't consider union proposals. I feel pretty confident the bidder will soon discover that he'll need to change his tune, because the union no doubt took note of that statement.
Sam Estreicher (NYU) has just posted on SSRN his article, "Improving the Administration of the National Labor Relations Act without Statutory Change." According to the abstract:
Crystal Lee Sutton, the real life "Norma Rae," unfortunately died last week. Faced with poor working conditions at the N.C. textile plant where she worked, Sutton began protesting and headed a unionization drive. Not surprisingly, she was fired. However, her efforts were not in vain, as the workers voted for a union within the year and she eventually won backpay and reinstatement (which she gave up to organize full-time). The rest was cinematic history.
Hat Tip: Lynn Dancy Hirsch
There is a new issue of Law & Ethics of Human Rights at BePress, entitled "Labor Rights in the Era of Globalization.
Berkeley Electronic Press is pleased to announce the following new special issue of Law & Ethics of Human Rights, featuring articles which explore themes such as the shifting philosophical foundations and conceptual framework of international labor rights and their relations to international human rights, transnational labor regulation and the changes that have occurred in practice, and the conceptualization of rights associated with these concepts, including freedom of association, minimum wage, and labor migration.
Guest Editors: Yossi Dahan, Academic Center of Law & Business
Faina Milman-Sivan, University of Haifa
ArticlesFreedom of Association as a Core Labor Right and the ILO: Toward a Normative Framework
The International Labor Organization in the Stag Hunt for Global Labor Rights
De-Territorializing Labor Law
Collective Labor Rights and the European Social Model
CommentsComment on Alan Hyde: The Perils of Economic Justifications for International Labor Standards13
All of the articles can be downloaded in pdf form from the site linked above.
In most states, the at-will rule would provide an easy answer, but New York forbids employers from discriminating against employees based on their lawful recreational activities. The underlying story about Human Rights Watch is here; Eugene Volokh analyzes the employment law issues here.
Hat tip: Dennis Nolan.
Thursday, September 17, 2009
Blogger friend, David Doorey has a post on Doorey's Workplace Blog about the problems that the NBA may face if it goes lock through with its threat to lockout referees and use replacements. The short of it is that Ontario labor law--relevant because of the Toronto Raptors team--has a lot more procedural hurdles needed before an employer can out employees. Ontario law may also freeze the collective bargaining agreement, which would defeat a large part of the NBA's purpose in using a lockout.
David's got all the details, so check out the full link. It'll be quite interesting to see what happens if the NBA tries to go through with the lockout.
The program looks great, so nice work Tim, Charlie, and Rosa!
Wednesday, September 16, 2009
Baucus Healthcare Bill Falls Short on Public Option, Employer Mandates and the Effective Date for the Legislation
Although there are many interesting provisions in the Baucus Bill, including a requirement that individuals have health insurance coverage, the establishment of a health care exchange, proposed reforms for the private insurance system including not allowing exclusions for preexisting coverage, and expansion of the Medicaid program for the poor, I want to focus on three parts that trouble me that directly deal with current employee benefits law.
First, the plan does not adopt a public option for health care. Instead, it establishes state-based cooperatives to compete with private health plans. I think this a huge mistake and such coops will be a failure from the start. For the best explanation as to why, here is former Labor Secretary Robert Reich explaining why the public option is so superior to co-ops.
Perhaps even more disappointing from my perspective is that the Baucus Bill does not require employers to provide coverage to workers, like some of the House counterparts bills. Instead, employers with more than 50 workers who do not offer coverage will have to reimburse the government for each full-time employee receiving a health care affordability tax credit in the exchange starting in 2013.
Two thoughts on this one. One, there is no reason to limit this to employers with 50 employers with more. That is the cutoff currently for the Family and Medical Leave Act and it has left a huge number of workers without leave protection. Similarly, this arbitrary cut-off will continue to leave millions of workers at smaller employers without health coverage. As long as we are going to stick with our unique employer-provided coverage, we should make sure all employees can get coverage through their employers. The only other options is for these people to qualify through some other government program like Medicare, Medicaid, or Social Security. Yet, those programs do not provide the necessary and timely health treatment that many employees need.
Second, why does this not start until 2013? Assuming the bill passes in 2010, why should a vast number of workers suffer at these larger companies without healthcare? Or put at little more forcefully, how many employees will die in those three years from that delay in providing coverage.
Needless to say, I sure hope that these two provisions are not in the health care reform bill that President Obama eventually signs into law.
The text of the bill, America's Healthy Future Act of 2009, is available here.
Two recent court rulings have employers on edge about employees with serious weight problems because one little accident may force them to pay thousands to get the weight off.
That's what's happened to an Indiana pizza shop, which on Sept. 14 filed a petition for a rehearing after an appellate court ordered it to pay for a 340-pound employee's weight-loss surgery to ensure the success of a separate operation for a work-related back injury.
The Indiana Court of Appeals on Aug. 6 had held that The Gourmet Pizza must pay for the $20,000-plus lap-band surgery for Adam Childers, an obese cook who was hit in the back by a freezer door at work. Doctors had deemed the weight-loss surgery necessary before proceeding with the back operation.
And this does not appear to be an isolated or aberrant case:
The Indiana ruling mirrors a similar case in Oregon, where the state's Supreme Court ruled Aug. 27 that state workers' compensation insurance must pay for gastric bypass surgery to ensure the effectiveness of knee replacement surgery. In that case, the employee had developed arthritis in a knee he injured on the job in 1976. The state Supreme Court found that it did not matter that the weight-loss surgery also helped treat his morbid obesity, so long as it helped treat the original injury.
I am no workers compensation expert (maybe my friends at Workers Comp Insider can take a look), but these cases seems outrageous. Especially the first case, because he needed the surgery before he got injured. I would call his and the other person's need for weight surgery outside the scope of the injury they received at work.
Tuesday, September 15, 2009
President Obama announced today has appointed Marty Malin (Chicago-Kent) as one of seven new members of the Federal Service Impasses Panel of the Federal Labor Relations Board. The announcement explains why he's such a great choice,
Martin H. Malin is a Professor of Law and the Director of the Institute for Law and the Workplace at Chicago-Kent College of Law, Illinois Institute of Technology. He teaches courses in labor law, collective bargaining, arbitration, public sector labor law, employment law, contracts and jurisprudence. Malin has published five books, including Public Sector Employment: Cases and Materials (West 2004), the leading law school casebook on public sector labor law; and more than 60 articles on labor law and dispute resolution. An active arbitrator and mediator since 1984, Malin just completed a three-year term on the Board of Governors of the National Academy of Arbitrators and is a fellow of the College of Labor and Employment Lawyers. He also serves on the Executive Committee of The Labor Law Group and is a past chair of the Association of American Law Schools Section on Labor Relations and Employment Law. From 2004 - 2008, Malin served as Reporter for the Association of Labor Relations Agencies’ Neutrality Project. He was the principal drafter of ALRA’s Neutrality Report, a mini-treatise on labor board and mediation agency impartiality. During the mid 1980s, he served as a consultant to Illinois’ public employment labor boards and drafted the regulations implementing Illinois’ newly-enacted public sector labor relations acts. Malin joined the Chicago-Kent faculty in 1980, after teaching at Ohio State University and serving as Law Clerk to U.S. District Judge Robert DeMascio in Detroit. He holds a J.D. from George Washington University and a B.A. from Michigan State University.
The statement did not mention what a great mentor and friend he is also. Congratulations to Marty!
Colin Miller (John Marshall--Chicago) has a great post at Feminist Law Professors on a recent Seventh Circuit opinion, Coffman v. Indianapolis Fire Dep't. The plaintiff in that case was a fairly short woman (5 feet tall with her shoes on, in her words) who alleged that she was subjected to disparate treatment because of her sex and size.
Coffman had been employed at the department for a couple of years when a couple of coworkers expressed concern over her ability to drive the equipment. She was required to perform some safety tests, which she passed just fine, but some coworkers continued to doubt, and a downward spiral of resentment, performance questions, and testing ensued. Coffman alleged that short men were not subject to the same doubts and battery of tests.
The Seventh Circuit labeled her claim a "sex-plus" claim, since she was not arguing that all women were treated poorly--it was the combination of her sex and stature that drew the negative treatment. It then affirmed the grant of summary judgment, holding that she had failed to develop the theory.
Miller takes issue with the decision (and I agree with him), noting that the label of "sex-plus" is simply a heuristic, a judicial convenience in the words of the Second Circuit.
This being the case, how could the Seventh Circuit fail to address Coffman’s “gender plus” argument on the ground that she failed to develop it if it is simply a heuristic and judicial convenience? Under this reasoning shouldn’t the court have found that Coffman’s “gender plus” discrimination claim was really just a gender discrimination claim and addressed it on the merits?
Miller notes that it also appears that Coffman did not provide sufficient evidence--I assume to back up her claim that short men were not treated the same way--and so had no need to even discuss "sex plus." It's a good post and worth a read.
I think the decision is interesting for a couple of other reasons. First, it was written by Judge Rovner, who is, in my opinion, a very sophisticated thinker when it comes to discrimination. Judges Posner and Easterbrook were also on the panel, and they, too, are sophisticated thinkers, but have significantly different views from each other and from Judge Rovner. That could be one of the reasons for the discussion. Second, Coffman's story seems a classic example of the way that someone subject to discrimination can end up being viewed as at fault for her treatment. Each request and suspicion communicated to her in the facts seems to have made her more angry and resentful. Legitimate reactions, it seems to me, particularly if she is in a traditionally macho line of work and she's working hard not to be viewed as a china doll. Yet those legitimate reactions are viewed as idiosyncratic, unreasonable, and unrelated to any discrimination she might be experiencing. They legitimize the different treatment. And the judicial reaction to that is fully explained in analyzing her harassment claim--her subjective experience of harassment is not reasonable. She can't win for losing.
Hat tips: PS and Hank Leland for fixing my link
The Human Rights Campaign, via Above the Law and the ABA Journal, reports that big law firms are better than most other employers at creating nondiscriminatory environments for gay and lesbian employees:
In 2006, the first year law firms were included in the Human Rights Campaign survey, 12 got a perfect rating of 100 percent. This year an unprecedented 88 law firms got perfect ratings, “eclipsing every other industry represented on the index,” according to a press release. The group evaluated 127 law firms in all; 124 of them were among the nation’s largest 200 law firms.
Monday, September 14, 2009
The White House just announced its intent to nominate Chai Feldblum (Georgetown) as an EEOC Commissioner. Most readers of this blog are well aware of Chai's contributions to employment discrimination law (particularly the ADA, the ADA Amendments, and ENDA), but here's the White House announcement as a reminder:
Chai Feldblum is a Professor of Law at the Georgetown University Law Center where she has taught since 1991. She also founded the Law Center’s Federal Legislation and Administrative Clinic, a program designed to train students to become legislative lawyers. Feldblum previously served as Legislative Counsel to the AIDS Project of the American Civil Liberties Union. In this role, she developed legislation, analyzed policy on various AIDS-related issues, and played a leading role in the drafting of the Americans with Disabilities Act of 1990 and, later as a law professor, in the passage of the ADA Amendments Act of 2008. She has also worked on advancing lesbian, gay, bisexual and transgender rights and has been a leading expert on the Employment Nondiscrimination Act. As Co-Director of Workplace Flexibility 2010, Feldblum has worked to advance flexible workplaces in a manner that works for employees and employers. Feldblum clerked for Judge Frank Coffin and for Supreme Court Justice Harry A. Blackmun. She received her J.D. from Harvard Law School and B.A. from Barnard College.
Congratulations to Chai, and hopefully she'll soon be able to help interpret some of the acts that she helped to write.
Hat Tip: Marcy Karin
Via Ross Runkel at Employment Law Memo comes news of a case revived through the Ledbetter Act, Mikula v. Allegheny County of Pennsylvania. Mary Lou Mikula was hired in 2001, and in 2004, discovered that she was paid less than a male manager that she thought did substantially equal work. She wrote a memo to her boss, asking for a title change and raise equal to the salary of the male manager. The boss sent the memo on to HR, but no one ever responded to Mikula's request. In 2005, she asked again, and in 2006, she filed an internal complaint and in federal court, an Equal Pay claim. In August of 2006, the HR department sent her a letter stating that her allegations of discrimination were unfounded and her rate of pay fair. She filed a charge with the EEOC within 300 days of that letter. When she received a right to sue letter, she amended her EPA complaint to add the Title VII claim.
On summary judgment, the district court found the Title VII claim to be time barred under Ledbetter because the discrimination occurred when she was hired in 2001. Even applying a discovery rule, her charge was fired more than 300 days after she discovered the disparate pay in 2004. While the case was pending on appeal, one she brought pro se, the Ledbetter Act was signed into law. The court of appeals held that it did not apply, however, finding Mikula's request for a raise and the denial not to be pay decisions or "other practice[s]" which would give rise to a cause of action. Mikula retained counsel and filed a petition for rehearing, which the court granted.
On rehearing, the court held that Mikula's claim was timely as to paychecks that she received 300 days before filing her EEOC charge and that the failure to answer a request for a raise qualifies as a compensation decision--the result is the same as if the request were denied. The court reaffirmed that the investigation report does not constitute a compensation decision or other practice, though, reasoning that it did not want to create a disincentive for employers to investigate discrimination.
The result is basically the right one here, but I'm not sure the reasoning the court used was quite right. The court of appeals interpreted the Ledbetter Act to treat each paycheck as a separate and discrete act of discrimination, such that backpay for a paycheck received before the 300-day window could not be awarded. That's not precisely how the Act should work. The section that provides for a rule on when the cause of action occurs provides that
an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when . . . an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a [original] decision or other practice.
So, as the court held, as long as one paycheck was paid in the 300-day window, the plaintiff has a cause of action for discrimination in pay. But each paycheck isn't totally discrete, either. When it comes to remedy, the Act provides,
(B) In addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
That sounds to me like a modified continuing violation view of pay discrimination, a modification to the principle in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) and Bazemore v. Friday, 478 U.S. 385 (1986) that pay discrimination (even when dealing with paychecks) is a discrete discriminatory act rather than a continuing violation.
Hat Tips: Ross Runkel, PS
Albert Feuer (practitioner) has just put on SSRN his article, "A Well-Reasoned But Incorrect QDRO Decision Pertaining to Life Insurance Payments from an ERISA Plan." According to the abstract:
In Metropolitan Life v. Drainville, 2009 U.S. Dist. LEXIS 63613 (DC R.I. July 23, 2009), a federal district court in Rhode Island recently explained the requirements that a domestic relations order must satisfy to be a qualified domestic relation order (“QDRO”). At the time of his death the participant had named his second wife as the beneficiary of his ERISA life insurance benefits. However, the divorce decree between the participant and his first wife required him to keep his first wife’s children as his sole beneficiaries. The Court held that the ERISA plan had to pay the benefits to the first wife’s children. The Drainville court correctly concluded in a well-reasoned manner that (1) strict compliance with the QDRO disclosure requirements is not required, but substantial compliance is adequate; (2) an agreement that is merged or incorporated into a divorce decree may be a QDRO; and (3) a DRO may be a QDRO even if the plan administrator does not determine that it is a QDRO. The Drainville court, like many other courts, incorrectly disregarded the fact that the QDRO requirements, including the requirement that ERISA plans follow the designations of such an order, are applicable only to pension plans. Thus, the court should have (1) directed the life insurance plan to disregard the DRO at issue, and (2) held that the participant’s designee, his first wife, was entitled to his benefits.
Albert has been writing a lot about the new developments with domestic relations orders, so definitely check out his latest.
From Saturday's New York Times, Peter Goodman's "In Wisconsin, Hopeful Signs for Factories."
At the Rockwell Automation factory [in Mequon], something encouraging happened recently that might be a portent of national economic recovery: managers reinstated a shift, hiring a dozen workers.
After months of layoffs, diminished production and anxiety about the depths of the Great Recession, the company — a bellwether because most of its customers are manufacturers themselves — saw enough new orders to justify adding people.
Given the panicked retreat that has characterized life on the American factory floor for many months, any expansion registers as a hopeful sign for the economy. Last week, the Federal Reserve found signs of “modest improvement” in manufacturing. That reinforced the direction of a widely watched manufacturing index tracked by the Institute for Supply Management, which surged into positive territory last month for the first time in a year and a half.
But for sure: we aren't quite there yet. The article goes on to warn that, "these indications, while welcome, promise no vigorous expansion: For now, factory overseers remain uncertain that a lasting resurgence is at hand, making them reluctant to hire workers aggressively and invest in new equipment." That type of expansion might be some time off.
But here's hoping that we are at least heading up from the bottom of the Great Recession.
“HR Watches The Office” is a podcast that analyzes NBC’s comedy The Office from a human resources perspective. The Office Season Six begins on Sept. 17; the first episode of HRWTO will be released the following morning. Congratulations to my former student Tim Davis who provides regular legal commentary for HRWTO.
From the Chattanooga Times Free Press:
A union official backed away Friday from an analogy in an e-mail in which he had linked Volkswagen's Nazi past to the use of Hispanic workers building the automaker's Chattanooga plant . . . . Tom Owens, director of communications for the AFL-CIO's Building and Construction Trades Department in Washington, D.C., [wrote in an email this week that VW under the Nazis was responsible for the mass deportation and exploitation of workers. Now VW is replicating its past by] building the plant while Tennessee is in a recession and "they resort back to their dark past by making use, and exploiting, a predominantly foreign work force that some eyewitnesses say is 80 percent non-English-speaking Latino."
Owens now says that the analogy he made about VW was a bad one, and that he regrets making it.
Hat tip: Dennis Nolan.
The National Mediation Board (NMB) this year celebrates its 75th Year of addressing and resolving labor-management disputes in the railroad and airline industries. One of the ways the Board is marking this occasion is by forming an independent, blue-ribbon “Dunlop Committee Reports Review Committee” to examine the internal functions, policies and procedures of the NMB and the recommendations of the Dunlop Commission of the 1990s. This "Dunlop II" Committee has been asked to report to the Board its updated recommendations for agency improvement.
Hat tip: Laura Cooper.