October 3, 2009
Ariana Levinson (Louisville-Brandeis) has just posted two articles on SSRN, and would welcome feedback. The first, forthcoming in Akron Law Review, is Carpe Diem: Privacy Protection in Employment Act. Here's the abstract:
Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent calls for privacy protection to address emerging technologies are to succeed, blueprints for legislation must be provided. This article, thus, contributes to the call for reform by proposing a federal statute to protect employees’ privacy from technological monitoring by their employers.
The article surveys potential sources of law and legislation that, while inadequate on their own to protect employees’ privacy, serve as a foundation for the proposed legislation. While each of these sources has been reviewed by scholars in the past, consideration of all as a potential source upon which to model legislation is a notable strength underlying the proposed statute. The basic framework of the proposed statute is to provide protection based on the degree of intrusiveness of the privacy invasion. The framework provides baseline protection for on-duty actions, intermediate protection for on-duty communications and use of employer communications technology, and the greatest protection for off-duty behavior. Other notable features of the proposal include the comprehensive nature of the proposal, in comparison to most prior scholarly proposals; the flexibility the statute provides to employers to engage in necessary monitoring; provisions designed to foster employee involvement in implementing and enforcing workplace technological monitoring policies; and the involvement of a government agency, the Department of Labor, in educating interested parties about employee privacy issues and in enforcing the statute. While passage of legislation protecting employees’ privacy from employer technological monitoring may face an uphill battle, it is possible and should be done.
Ariana's second article, forthcoming Northern Kentucky Law Review, is Legal Ethics in the Employment Law Context: Who is the Client? Here's the abstract:
The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte communications. Because Kentucky recently adopted new rules of professional conduct, this paper uses Kentucky law as a microcosm through which to think about this larger question. Kentucky’s prior rules were based on the prior version of the ABA Model Rules of Professional Conduct, still at least partially in effect in approximately twenty-two states. And the current rules mirror, almost identically in pertinent parts, the current model ABA rules, known as Ethics 2000, on which approximately eighteen other states model the pertinent rules. This recent change permits scholars and attorneys from a wide variety of states to benefit from the insights about Kentucky law.
Section I discusses the law governing a corporate employer attorney’s relationship to the client and summarizes the law applicable to a union attorney’s relationship to the client. Section II describes the duty of confidentiality and its relationship to the attorney-client privilege. Section III considers how far down the chain of command an employer or a union can assert the attorney-client privilege. Among other topics, Section III discusses relevant rules of evidence, related authority dealing with employers, cases regarding unions asserting the privilege, and fiduciary exceptions to asserting the privilege. Section IV addresses privileges related to the attorney-client privilege that a union may, in some circumstances, be able to assert. Finally, Section V discusses the law governing ex parte communications with employees of a represented employer.
Conference: Equity in the Workplace
Michael Lynk writes to tell us that the University of Western Ontario will be holding its regular Law Lecture and Conference on October 30 & 31. The theme this year will be Equity in the Workplace: Twenty Five Years after the Abella Report. In November 1984, the federal Canadian government released the report of the Royal Commission on Equality in Employment (known popularly as the Abella Report, after its author). The report recommended that the federal government adopt employment equity as a goal in the federally-regulated workplace, which is the Canadian version of affirmative action.
The author of the report, Madam Justice Rosalie Abella, is now a justice on the Supreme Court of Canada. She will be delivering the Koskie Minsky LLP Lecture on Labour Law on Friday, 30 October, reflecting on employment equity and the impact of her 1984 report. A reception and dinner will follow.
The following day, Heenan Blaikie LLP and Western Law are co-sponsoring the Labour Law Conference, which will continue the assessment of how well employment equity has fared in Canada. The conference will host four panels of legal and industrial relations scholars, lawyers, and policy advisors who will critically examine the successes and shortcomings of employment equity, both in Canada and abroad.
The Lecture and Conference are open for registration. A wide audience is invited, including academics, lawyers, union officials, industrial relations managers, policy advisors and consultants, human rights specialists, law students, industrial relations students and anyone with an interest in contemporary workplace issues.
The University of Western Ontario is located in London, Ontario, which is approximately two hours by car from Detroit and from Toronto.
October 2, 2009
Eskridge Alleges Not Being Given Tenure by UVA Law Based in Part on Sexual Orientation
As the country takes in the Letterman extortion scandal, I just read from Brian Leiter's Law Reports about Yale Law School Professor WIlliam Eskridge telling Congress that he was denied tenure at Virginia Law in part because of sexual orientation discrimination.
This blog has the relevant excerpt from the testimony by William Eskridge, Jr. (Yale); it also contains a link to the full testimony (the relevant portion is on pp. 85 ff.).
Mores specifically, Eskridge was testifying about the need and legality of the proposed Employment Non-Discrimination Act (ENDA) last week and said:
For an example explained in my statement, I was denied tenure at the University of Virginia School of Law in 1985 based in part on my sexual orientation. The hysterical behavior and deployment of anti-gay epithets by key state officials indicates that the decision was influenced by anti-gay prejudice. The inability of state officials to explain their decision without engaging in libel underlines the irrationality of the state discrimination and its vulnerability to equal protection attack.
I, of course, have no idea about the merit of these allegations, but if they are true what a powerful piece of testimony to support the need to protect LGBT individuals in the workplace.
ABA Diversity Programming
Building a more diverse legal profession is not a quick-fix, short-term goal. It is an ongoing campaign. As President of the American Bar Association, Carolyn Lamm has formed a Presidential Diversity Commission, which is presenting a series of CLE distance learning programs to help diverse lawyers advance their careers. The programs will address diversity from the perspectives of race, ethnicity, disability, gender, sexual orientation and gender identity.
Registration is now open for the first program in the series. Registration for the second and third programs will be available later this year.
- Removing Bias from Attorney Evaluations (Webcast) Friday, October 16, 2009 from 11:30 – 1:00 p.m. eastern time. Click here to register.
- Smart Soloing: Success Strategies for Diverse Lawyers (Webcast – Winter 2010)
- What Law School Didn’t Teach You: Self-Advocacy for Survival and Sustainability (Webcast or teleconference, Spring 2010).
The first program in the series will address key ways to reduce the impact of bias concerning associate advancement in law firms. The panel discussion will focus on how fair evaluations help ensure opportunities for associates to work on complex matters for important clients and improve their skills, increase their referral base and achieve a high level of satisfaction with law practice. This program is available to ABA members at a reduced rate of only $25. Non-members can register for only $45 and non-members who register for one or more of the programs are eligible for 50% off ABA membership dues.
For full descriptions of all the programs in the series, please visit www.abacle.org/diversityseries
Sears Disability Settlement
Earlier this week, the EEOC reported that it had reached a settlement with Sears, Roebuck & Co in a class-action suit under the ADA. In EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282, The EEOC alleged that Sears Sears maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA. The settlement provides $6.2 million for the class members, and significant injunctive relief.
EEOC Chicago District Director John Rowe, who supervised the agency's administrative investigation preceding the lawsuit, said that the case arose from a charge of discrimination filed with the EEOC by a former Sears service technician, John Bava. According to Rowe, Bava was injured on the job, took workers' compensation leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. Sears, Rowe said, "Could never see its way clear to provide Bava with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired."
Regional Attorney John Hendrickson of the EEOC Chicago District Office said pre-trial discovery in the lawsuit revealed that hundreds of other employees who had taken workers' compensation leave were also terminated by Sears without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible.
"The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over," Hendrickson said. "Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law. Today's consent decree is a bright line marker of that reality."
In addition to providing monetary relief, the three-year consent decree includes an injunction against violation of the ADA and retaliation. It requires, in addition, that Sears will amend its workers' compensation leave policy, provide written reports to the EEOC detailing its workers' compensation practices' compliance with the ADA, train its employees regarding the ADA, and post a notice of the decree at all Sears locations.
According to Greg Gochanour, EEOC supervisory trial attorney in Chicago, "This is not merely a garden variety so-called 'cost of litigation' settlement. We discovered well over a hundred former employees who wanted to return to work with an accommodation, but were terminated by Sears - and some of them found it out when their discount cards were rejected while shopping at Sears. We believe Sears' decision to accept this decree makes good sense."
There will be a hearing in February to determine the fairness of the monetary settlement to the individual class members.
Hat tip: PS
Karin to Arizona State; Will Establish Work-Life Program
Marcy Karin, currently at Georgetown, has joined the ASU College of Law as an Associate Clinical Professor and Director of the Civil Justice Clinic's new Work-Life Policy Unit. Her goals are to continue to build on the reputation of the clinic, which represents clients in civil disputes and administrative proceedings, and to expand its services into developing public policy on work-life balance issues.
As legislative counsel for Georgetown Law's Workplace Flexibility 2010, Karin helped develop a constituency base and political support for comprehensive public policies on flexible work arrangements, short-term, episodic and extended time off, and career maintenance and reentry, among other issues.
"There are some legal obstacles that need to be reworked and some incentives that the federal and state governments could do to support this in ways that meet the needs of employees, employers, and the community," Karin said. "Students in the clinic and I will work with clients to develop and change existing law to support these solutions."
October 1, 2009
September 30, 2009
American Apparel Fires Thousands of Undocumented Workersvia New York Times), though not with its CEO this time:
A clothing maker with a vast garment factory in downtown Los Angeles is firing about 1,800 immigrant employees in the coming days — more than a quarter of its work force — after a federal investigation turned up irregularities in the identity documents the workers presented when they were hired.
The firings at the company, American Apparel, have become a showcase for the Obama administration’s effort to reduce illegal immigration by forcing employers to dismiss unauthorized workers rather than by using workplace raids. The firings, however, have divided opinion in California over the effects of the new approach, especially at a time of high joblessness in the state and with a major, well-regarded employer as a target.
Wow, this is a minefield to walk into and I am sure I will hear it from people on both sides of the debate, but I do not believe firing these workers and treating them all the same is a good approach. Especially for those immigrants who have been productive American citizens for years, why not give them a chance at amnesty? I know this is controversial, but entering a country illegally does not make one forever ineligible from holding employment in this country in my opinion- we need to have a more nuanced approach and system that takes into account the individual circumstances of these undocumented workers.
More time and resources yes, but the dignity and human rights of individuals requires no less.
HT: Josh Pollack
Supreme Court Grants Cert. in New Title VII/Ricci Case
Title: Lewis et al. v. City of Chicago
Issue: When an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?
More info over at the SCOTUSBlog.
Carolyn argues and I agree that, "given the ongoing litigation and New Haven's position that it was not going to use the test, I think there is an argument that the 'announcement' only happened when the Court issued its decision or possibly even when the City took steps to implement it."
An OSHA Rule Siting
Anywho, this time OSHA is focused on modifying its Hazard Communication Rule and seeks comments on it from the public. This proposed Rule would modify OSHA's existing hazard communication standard to conform with the United Nations' globally harmonized system of classification and labelling of chemicals.
If you have insomina, the 679-page rule (BNA subscription required) will certainly do the trick. I mean who isn't excited about reading up on criteria for classification of chemical hazards; labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; and specified format for safety data sheets.
Comments may be submitted electronically at http://www.regulations.gov, within 90 days of publication in the Federal Register; by fax to the OSHA Docket Office at (202) 693-1648; or by mail to the OSHA Docket Office, Docket No. OSHA-H022K- 2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW, Washington, DC 20210. All submissions must include the agency name and the docket number for this rulemaking (Docket No. OSHA-H022K-2006-0062).
The Gross Fair Age Discrimination Prevention Act?
The Senate Committee on the Judiciary has scheduled a hearing on, and I quote, "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?" The witness list includes:
* Jamie Leigh Jones of the Jamie Leigh Foundation, an organization dedicated to victims of crime working overseas for government contractors and subs;
* Prof. Michael Foreman from my undergrad alma mater, Penn State, where he directs the Civil Rights Appellate Clinic at the law school; and
* Jack Gross, plaintiff in Gross v. FBL Financial.
I agree with Philip that some Senators, like Leahy, are targeting the Gross decision for annihilation, but I also agree with him that, "it's just a hearing and to my knowledge no precise action has been proposed."
September 29, 2009
NLRB Seeks Cert on Two-Member Board IssueAs we've been reporting, several parties have sought cert. on whether two-member NLRB decisions are valid. The Board has now joined in asking the Supreme Court to hear the issue. The Board announced today that it was seeking cert. in two cases, Laurel Baye and New Process Steel. The core of the announcement states:
The Board has operated with only two members for nearly two years, since the appointments of two Board members expired on December 31, 2007. Rather than cease functioning, the two remaining members – current Chairman Wilma B. Liebman, a Democrat, and Member Peter C. Schaumber, a Republican – have continued to issue decisions in matters on which they can agree. In doing so, they drew on advice from the U.S. Department of Justice’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007, and since that time, the two Board members remaining, acting as a quorum of the group, have issued nearly 500 decisions.
While many of those decisions have been accepted by the parties, dozens have been appealed to the federal courts of appeals on the two-member question, and decisions have been split. The U.S. Courts of Appeals for the First, Second and Seventh Circuits have all held in favor of the Board, while the District of Columbia Circuit, in Laurel Baye, held that the Board did not have the authority to act. In New Process Steel, the Seventh Circuit held that, “The plain meaning of the statute....supports the [Board]’s delegation procedure.” Today’s filings ask the Supreme Court to affirm that finding and to reverse the contrary holding of the District of Columbia Circuit.
Although far from guaranteed, the government's request for cert. definitely increases its chances. Even aside from my own personal interest in seeing this go to the Court, it's been an issue that has come up periodically for a long time and it needs to be settled once and for all (of course, Congress could clear things up too).
Hat Tip: Justin Keith & Patrick Kavanagh
FMLA Insight Podcasts: Intermittent Leave and Medical Inquiries
Friend of the blog, Jeff Nowak, sends along links to monthly FMLA podcasts that highlights difficult FMLA issues employers regularly face and provides advice on how employers might handle the situation. Here is the link for the August FMLA podcast, which provides practical suggestions for handling intermittent FMLA leave: "Do we really need to worry about the FMLA for short absences?"
The September FMLA podcast, entitled, "Is it true that employers can't contact a health care provider to clarify a medical condition?", deals with the "myth" that employers cannot follow up with an employee’s health care provider to clarify or authenticate medical certification. Depending on the circumstances, the new FMLA rules provide several additional tools for employers to use when following-up on inadequate or questionable medical certification.
If any readers have any questions about the FMLA or have recommendations of scenarios you'd like Jeff and his firm to cover in future podcasts, please email him at email@example.com.
Zimmer on Unionism and Equality in China, Mexico and the United StatesEscaping the Westphalian Trap: Unionism and Equality in China, Mexico and the United States. Mike presents the piece at UCLA Law on October 10th.
Here's the abstract:
With increased economic globalization since the 1980s has come increased economic inequality and a decline in union density in most countries of the world, with one notable exception being the Peoples Republic of China. The decline in unionism contributes to increased inequality. This paper will try to begin to answer the question whether a revived unionism operating transnationally can do to help reduce inequality as it did during the industrial era following World War II. To do that, this paper will compare and contrast the union movements in China, Mexico and the U.S.
Part I will set out the contours of the problems the union movement faces because many employers have been able to organize themselves to escape national labor laws and national labor unions. Unions, in these three countries as well as elsewhere, have not escaped the trap set up by the Westphalian-based system of sovereign nation states which use national law to regulate national economies. Part II will sketch out some of the ways the union movement might attempt to respond to the present situation, as well as some of the obstacles such action will need to overcome if the union movement is to escape the Westphalian trap. Part III concludes.
Sounds like a fascinating piece. I am especially interested in learning more about whether Chinese unionism is really nothing more than an extension of the Maoist state.
Zelinksky on Reforming Health Care
Edward Zelinsky (Cardozo) has just posted on SSRN his article (delivered Thursday as the Dr. Arthur Grayson Distinguished Lecture at Southern Illinois University and to be published in the Journal of Legal Medicine) Reforming Health Care: The Paradoxes of Cost. Here's the abstract:
Whatever happens in Washington in the weeks and months ahead, the United States is fated for the indefinite future to conduct a prolonged and difficult national debate on health care. The reason for this protracted and arduous argument can be summarized in a single word: cost. Yet, paradoxically, the rhetoric of unspecified cost reduction is used to avoid the painful choices needed to prune health care outlays, choices which inevitably involve agonizing denials of medical services in a world of finite resources. Medical costs cannot be controlled without denying something to somebody. Yet, paradoxically the term “cost” is used in contemporary political discourse to avoid the difficult choices involved in such denials. It is easier to favor unspecified cost reductions, than to identify particular service denials which would actually reduce medical care expenditures. Elected officials are reluctant to deny medical services to cut costs, but health care costs cannot be meaningfully controlled without such service denials. Our employer-based system of medical care is a major reason we confront this difficult situation. Yet, again paradoxically, the employer-based system, though flawed, is the best tool available to us to control medical care costs since employers must respond to competitive pressures in the marketplace and thus are better positioned than is government to implement the painful service denials necessary to curb health care outlays. However, even under the best of circumstances, medical care costs are not a problem which will be solved but rather are a reality to be permanently and painfully managed and controlled.
Evil H.R. Lady ...
... is very upset at employers who penalize employees for calling in sick. Here's why employers who do so are shooting themselves in the foot.
September 28, 2009
Union Pacific PreviewLLI preview:
[LLI list the issues as:]
The Railway Labor Act (“RLA”), 45 U.S.C. §§151 et seq., sets forth a comprehensive framework to resolve labor disputes in the railroad industry through binding arbitration before the National Railroad Adjustment Board (“the Board”). The statute provides that the Board's judgment “shall be conclusive . . . except . . . for”: (1) “failure . . . to comply” with the Act, (2) “failure . . . to conform or confine” its order “to matters within . . . the [Board’s] jurisdiction,” and (3) “fraud or corruption” by a Board member. 45 U.S.C. §153 First (q). This case involves the Board’s denial of employee grievance claims for failure to comply with its rules governing proof that the dispute had been submitted to a “conference” between the parties. 45 U.S.C. §152 Second. The Seventh Circuit held that the award must be set aside because the Board violated due process through retroactive recognition of a supposedly “new rule.” The questions presented are:
- Whether the Seventh Circuit erroneously held, in square conflict with decisions of the Third, Sixth, Tenth, and Eleventh Circuits, that the RLA includes a fourth, implied exception that authorizes courts to set aside final arbitration awards for alleged violations of due process.
- Whether the Seventh Circuit erroneously held that the Board adopted a “new,” retroactive interpretation of the standards governing its proceedings in violation of due process.
- Are final arbitration awards determined by the National Railroad Adjustment Board subject to review for violations of due process?
- Was the National Railroad Board applying a “retroactive” interpretation of the procedural requirements in its arbitration proceedings by dismissing a complaint because of untimely submission of evidence of prior conferencing between the parties?
Last Week's ENDA Hearing and Study of Discrimination by State and Local Governments
Last week, the House Education and Labor Committee held the first full committee hearing in the House on ENDA (The Employment Non-Discrimination Act (H.R. 3017)). ENDA, introduced by Rep. Barney Frank (D-MA), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and in 38 states based on gender identity. Video and links to testimony can be found on the committee's website here.
One of the subjects of testimony was this report by the Williams Institute at UCLA School of Law, documenting widespread discrimination on the basis of sexual orientation and identity by state and local governments. This report will be an important piece of legislative history to support the constitutionality of ENDA's abrogation of state sovereign immunity.
For a concise, plain English summary of the bill, see Jillian Weiss's summary here.
Herbert on NY's Card Check LawThe Development and Administration of Non-Electoral Labor Certifications in New York." The abstract:
During the debate over proposals in the Employee Free Choice Act to modify United States federal labor policy to reestablish an administrative procedure for the certification of unions without an election, it has been notable that New York’s 50 year history and experience in the use of non-electoral certification procedures have been ignored. This article seeks to fill a void in the literature by examining New York's development and administration of non-electoral labor certifications. It seeks to demonstrate how experiences under state labor and employment law can provide important and relevant information to be considered when discussing changes to federal labor law. The article begins with an overview of New York public sector labor relations history prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes and the establishment of formal grievance procedures by public employers which were the precursors of de jure representational rights and collective negotiations. It then describes the largely untold story behind the development of New York City's collective bargaining system for municipal employees in which included a non-electoral certification procedure similar to that which existed under the Wagner Act. It then turns to the subsequent development and administration of certification without election procedures under New York's Public Employees’ Fair Employment Act, the New York City Collective Bargaining Law and New York Labor Law.I've both read an earlier version of this article and seen Bill present it, and it's well worth the read. In fact, it's a must-read for anyone who wants to engage in a debate about card-check representation. The EFCA debate has largely ignored the fact that we've got a half-century of experience with card check in the U.S. and Bill's article is an important addition to that debate.
Langille on International Labour Law
This Paper suggests that the answer to the question “what is domestic labor law for?” - commonly regarded as securing “justice against markets” or a justified tax on market activity-has informed the search for the answer for the question “what is international labor law for.” This is reflected in what this Paper refers to as P2, which provides that “the failure of any country to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.” P2 envisions a “race to the bottom” by rational states trapped in a Prisoner’s Dilemma game. The author maintains that this cannot be the objective of ILO which cannot stop “the race” given its deficient enforcement mechanisms to ensure compliance. This Paper suggests an alternative raison d’etre for the ILO, which is called P1, namely social justice: “universal peace can only be established if it is based upon social justice.” P1 reflects what states actually seek to achieve. Following Sen, this Pap er suggests that there is no tradeoff between social justice and economic efficiency. Therefore the promotion of labor rights by the ILO will contribute both to social justice and to economic success. Thus the ILO should promote international labor law so as to lead member states to pursue their self-interest which is consistent with the collective goal of humanity.