Workplace Prof Blog

Changing Demographics of the Labor Movement

The Center for Economic and Policy Research has issued a new report entitled, The Changing Face of Labor, 1983-2009, documenting the demographic changes in the labor movement in the last 25 years, which mirror the demographic changes in the economy more generally. From the press release,

• Women now make up over 45 percent of unionized workers, up from just 35 percent in 1983. By 2020, women will be the majority of union workers.
• Latinos are the fastest growing ethnic group in the labor movement. In 2008, they represented 12.2 percent of the union workforce, up from 5.8 percent in 1983.
• Asians have seen considerable gains and made up 4.6 percent of the union workforce in 2008, an increase from 2.5 percent in 1989.
• Black workers were about 13 percent of the total unionized workforce, a share that has held fairly steady since 1983, despite a large decline in the representation of whites over the same period.
• Over one-third of union workers had a four-year college degree or more, up from only one-in-five in 1983. Almost half of union women had at least a four-year college degree.
• Only about one-in-ten unionized workers was in manufacturing, down from almost 30 percent in 1983.
• Just under half (48.9 percent) of unionized workers were in the public sector, up from just over one-third (34.4 percent) in 1983. About 61 percent of unionized women are in the public sector.
• The typical union worker was 45 years old, or about 7 years older than in 1983. (The typical employee, regardless of union status, was 41 years old, also about 7 years older than in 1983.)
• More educated workers were more likely to be unionized than less educated workers, a reversal from 25 years ago.
• Immigrants made up 12.6 percent of union workers in 2008, up from 8.4 percent in 1994.
• In rough terms, five-in-ten union workers were in the public sector; one of every ten was in manufacturing; and the remaining four of ten were in the private sector outside of manufacturing.

It's interesting data to go with Jeff's earlier post about public v. private sector unionization.

MM

Important Caterpillar 401(k) Fees Litigation On The Way to Settlement

Update (11/14/09): Not only will Caterpillar engage in far greater disclosure, but under the proposed settlement they will avoid retail mutual funds in large 401k plans, and get bids instead. Individual participants will now know the amount of money they are paying instead  of the generic disclosures that are used in almost all plans.   

From Forbes.com yesterday:

In the war over hidden and excessive 401(k) fees, investors may have won a battle in Illinois.

Caterpillar, the heavy equipment manufacturer in Peoria. Ill. has agreed to settle a class action alleging that employees and retirees in its 401(k) plans were overcharged by potentially millions of dollars.

If a federal judge and independent fiduciary approve the deal the parties struck, Caterpillar will pay $16.5 million to settle the case. More importantly, it has agreed to make changes to its 401(k) plan that could potentially save employees millions of dollars. More important still, it may set a precedent for other companies to follow . . . .

The Caterpillar plan's record-keeping fees would be limited, according to the memorandum on file with the court. Record-keeping fees can add substantially to investor costs. The fees are often based on assets under management, so an investor pays more as his or her balance increases. At Caterpillar, such fees will henceforth be calculated on a flat or per-participant basis . . . .

The settlement is a rare victory for investor advocates. In February, in a 401(k) case against Deere & Co., a federal appeals court judge ruled in favor of the employer. Jerome Schlichter, the plaintiffs' attorney with Schlichter, Bogard & Denton, who handled both the Caterpillar and Deere suits, has sued a dozen other companies over their 401(k) plans, including Exelon, General Dynamics  and International Paper. He says he is appealing the Deere case to the U.S. Supreme Court. The Supreme Court is already hearing a separate case, Jones vs. Harris Associates, which involves the question of whether mutual funds over-charge for their services.

It might be appear to be common sense for companies to engage in these types of disclosures with regard to plan fees, but litigation is proving that such is not the case. 

William Birdthistle (Chicago-Kent) and I previously wrote an amicus brief in the Hecker v. Deere case that is referred to above and it discusses some of these very inequities that currently exist in the way participants of 401(k) plan are charged for mutual fund fees.  I have also joined an amicus cert. brief in the Deere case which will be filed this Monday.

PS

EEOC Revamps Website

If you haven't been to eeoc.gov recently, you should take a look. The website has been completely revamped and is much more user friendly. There's lots of good information for employees, employers, and interested people. And it's all in relatively plain English. It's a great improvement.

Update: and the NLRB's new site (nlrb.gov) complete with revamped e-filing is great too.

MM

New EEOC Statistics Show Age Discrimination Complaints are . . . Down?

Via Mitchell Rubenstein at the Adjunct Law Prof Blog:  the National Law Journal (subscription req'd) is reporting that new (yet to be released) EEOC statistics surprisingly show a 7% decline in the number of age discrimination complaints filed this year, as compared to last year. 

Conventional wisdom has it that the number employment discrimination complaints (of all kinds) are up as a result of layoffs and terminations in the economic downturn.  After all, unemployment rates recently topped 10%.  If more employees are being terminated across the country, it stands to reason that we would see a corresponding surge in employment discrimination complaints.  And, as conventional wisdom also has it, older workers are likely to be particularly hard hit in tough economic times.  Last year, the data seemed to bear that out.  For fiscal year 2008, all EEOC complaints were up by 15% over 2007.  But ADEA complaints led the way, increasing by almost 29%.

So why the decline in ADEA charges this year?  Employment lawyers interviewed for the NLJ piece suggested that perhaps more plaintiffs are turning to state law, and choosing not to file charges with the EEOC in order to avoid damages limitations under the ADEA.  That seems to be at least a plausible explanation, given that most federal courts have ruled that compensatory damages for pain and suffering and punitive damages are not available under the ADEA.  But that is nothing new.  It does not seem to explain why ADEA charges increased dramatically in 2008, but then fell back in 2009 – unless several states changed their age discrimination laws in the interim.   

Maybe this is the continuation of a trend toward more state-only filings in all types of employment discrimination cases, due not only to limitations on damages under some federal statutes but also to a growing perception that the federal court system is generally hostile to employment discrimination claims.  Marcia McCormick’s recent post discussed that possibility.  If the new ADEA numbers reflect a growing state-only preference among discrimination plaintiffs, then we might expect a similar decline in the number of EEOC charges of other types of discrimination.  At this point, though, it is too soon to tell.  According to the NLJ article, the EEOC is not yet commenting on the data relating to other types of discrimination complaints.

One possibility that could explain a unique decline in age discrimination charges (without a corresponding decline in other federal discrimination charges) is the Supreme Court’s opinion in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009).  After Gross, ADEA plaintiffs do not get the benefit of the mixed-motive burden-shifting that is available to Title VII plaintiffs, but must instead prove that age was the “but for” cause of the adverse employment action.  This ruling may have chilled ADEA charge filings, while having no effect on other types of discrimination charges.  But the Gross opinion was not handed down until mid-June of this year, meaning that only a few months of charge statistics could have possibly been affected by that ruling.  The EEOC’s fiscal year 2009 ended on September 30, 2009.   

A few other possible explanations come to mind:  Perhaps more discharged employees are proceeding directly to arbitration under increasingly common mandatory arbitration provisions.   Maybe employers are being more careful to conduct reductions in force in a way that avoids any statistically significant disparity that might support an inference of age discrimination.  Perhaps older workers were the first ones targeted by employers at the beginning of the economic downturn, so that their discrimination charges were filed primarily within the reporting period for 2008, rather than 2009. 

I would be curious to hear any other hypotheses.  No doubt we will have a better understanding when the EEOC releases all of the 2009 statistics.    

With that, I believe the time has come for me to sign off as guest blogger.  I want to again thank Rick Bales, Jeffrey Hirsch, Marcia McCormick, and Paul Secunda for allowing me to participate.  It has been a rewarding and enjoyable experience.  Thanks also to the readers who offered their thoughts on my posts.

-Jason Bent

Captive Audience Meetings Explored in WSJ

I swear that I was interviewed for this story, but I think I made the reporter's head hurt with talk of Garmon and Machinists labor preemption.  Here, in any event, is a taste of "Unions Push Issues in State Capitals":

Unions are pushing state lawmakers to pass legislation that would make organizing workers easier, as efforts to rewrite federal organizing laws remain stalled in Congress.

Oregon passed the Worker Freedom Act, which prohibits companies from holding mandatory employee meetings to talk about organizing.

Employers say mandatory meetings, known as "captive audience meetings," are necessary to counter misleading information disseminated by union organizers. Unions say employers use the meetings to gauge worker sympathies and pressure workers not to join the union.

It is unclear if the bill -- which was signed into law in June but doesn't take effect until January -- would be pre-empted by federal law. Oregon business groups say it should be and that the state law would violate employers' rights.

I disagree with the employers here that the law would be preempted. My piece, Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, explains why in excruciating detail.

PS

St. Antoine to Speak on Employment Arbitration

Ted St. Antoine (Michigan) will speak next Thursday (November 19) at Case Western Reserve University School of Law on the topic Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful.  He'll be giving the Rush McKnight Labor Law Lecture presented by the Center for the Interdisciplinary Study of Conflict and Dispute Resolution.  Here's a preview:

Agreements requiring employees to arbitrate all disputes with their employers, including statutory claims, instead of taking them to court, have become highly controversial. As a condition of getting or keeping a job, employees must waive their right to go before a judge and jury to pursue their cases. Yet in addition to saving the employer high litigation costs and devastating jury awards, so-called mandatory arbitration may give ordinary lower-paid employees the only practical means of enforcing their job rights. Courts are increasingly insisting on due process safeguards in these systems. Practitioners in the employment field should know about the pros and cons of mandatory arbitration agreements, and about the fast-moving legal developments concerning their validity.

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Mid-Year Union Membership Data

What’s happening to union membership in 2009? The year is not complete, but labor economists Barry Hirsch (Georgia State) and David Macpherson (Trinity University), who compile union membership statistics at UnionStats.com, provide new union membership and density estimates based on the January-September 2009 Current Population Survey (CPS) files.

What they find is that membership has fallen along with employment, but overall union density so far in 2009 has remained at its 2008 level of 12.6% of all wage and salary workers. This overall stability, however, masks diverging paths in the private and public sectors.  In the shrinking private sector, union density has fallen from 7.6% in 2008 to 7.3% so far in 2009. In the public sector, where there has been little loss in employment, union membership density has increased from 36.8% in 2008 to 37.6% in 2009. 

In recent years union observers have been watching the increasing share of public sector workers among union members. The year 2009 should be the year in which public sector membership overtakes private membership. While in 2008 the share of public sector to total members was 48.9%, the public sector share of membership through September 2009 rose to 51.2%. 

Check out the UnionStats site for these figures and more.

-JH (and, yes, I am related to Barry Hirsch)

EBRI Databook

Employee Benefit Research Institute has published the latest edition of the EBRI Databook.  The Databook contains sixty chapters.

Hat tip: Carol Furnish.

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Recently Published Scholarship: Law Students with Disabilities

American University Journal of Gender, Social Policy & the Law
Volume 18, Number 1

Assisting Law Students with Disabilities in the 21st Century:  A New Horizon?

Conference Panels:

• What the ADA Amendments and Higher Education Acts Mean for Law Schools, p. 13.
• Lost in Transition:  The If/When/How of Disclosing to an Employer, p. 41.
• And Now a Word from Our Students..., p. 103.
• Suffering in Silence:  The Tension Between Self-Disclosure and a Law School's Obligation to Report, p. 121.
• Anticipating and Meeting Challenges in a Changing Landscape, p. 141.

Lunch Address:

• Robert Dinerstein, Keynote Speaker, Disability: When, Why, and How It Matters, and When, Why, and How It Doesn't, p. 79.

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Recently Published Scholarship: Migrant Workers

Comparative Labor Law & Policy Journal
Volume 31, Number 1, Fall 2009

MIGRANT WORKERS: Special Collection by the International Studies Committee, National Academy of Arbitrators.

Articles

• Judy Fudge & Fiona MacPhail, The Temporary Foreign Worker Program in Canada:  Low-Skilled Workers as an Extreme Form of Flexible Labor, p. 5.
• Christoph Gyo, Migrant Workers in Germany, p. 47.
• Paul Roth, Migrant Labor in New Zealand, p. 67.
• Alan C. Neal, Migrant Workers and the United Kingdom Labor Market:  Some Trends and Implications of Twenty-First Century International Labor Migration Flows, p. 91.
• Kati L. Griffith, U.S. Migrant Worker Law:  The Interstices of Immigration Law and Labor and Employment Law, p. 125.
• Timothy J. Bartkiw, Baby Steps?  Toward the Regulation of Temporary Help Agency Employment in Canada, p. 163.

Book Review

• Edited by Paul Blyton, Edmund Heery, Nicholas Bacon, & Jack Fiorita, reviewed by Stephen Bach, The SAGE Handbook of Industrial Relations, p. 207.

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For All of You New Attorneys Out There Wanting That Big Law Firm Job

National Law Journal (via BNA) has provided some sobering statistics (not that you needed reminding anyhow):

The total number of attorneys at the 250 largest U.S. law firms declined this year to 126,669, down 4.0 percent or 5,259 from 131,928 attorneys last year, the National Law Journal said Nov. 9.The decrease, which followed a 4.3 percent gain in 2008, was the largest since the New York-based publication began tracking the largest law firms in 1978 and reflects the impact of the recession, according to the periodical.

The National Law Journal points out that the loss of lawyering jobs in law firms eliminates a good part of the growth at the firms during the past five years, reducing the number of positions at many firms below their levels in 2005. The last time we had any where close the decline in attorney opportunities was in 1993 (0.9 percent) and 1992 (1 percent).

Another fun fact:

Not surprisingly, associate ranks were hit hard by work force reductions, falling by 5,915 positions, or 8.7 percent, to 61,733 in 2009 from 67,648 last year. By contrast, the number of partners rose by 488, or 0.9 percent, to 53,468 from 52,980.

No surprise there!

Hat Tip: Jesse Dill

PS

AAUP's New Campaign to Protect Faculty Voice at Public Universities

The American Association of University Professors has instituted a new campaign to protect academic freedom and free speech at public universities. From the AAUP's press release on "Speak Up, Speak Out: Protect the Faculty Voice,”

The foundation of the project is a comprehensive report from a subcommittee of the AAUP’s Committee A on Academic Freedom and Tenure that examines the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos and its aftermath. The Court found that government can restrict the speech of public employees when they comment on issues related to their “official duties.”

While the decision specifically set aside “speech related to scholarship or teaching,” recognizing that such speech might have greater constitutional protection, several lower courts have ruled recently that faculty members who speak out on matters affecting their institutions are not protected under the First Amendment.

The report provides an analysis of these decisions and their implications for academic freedom, and recommends a number of action steps, including adoption of specific policy language designed to ensure the continued protection of academic freedom and shared governance.

“The current threat to faculty speech jeopardizes more than just individual educators,” says AAUP president Cary Nelson; “A greater community is at risk. We must defend faculty speech to encourage faculty members to use their expertise in addressing issues critical to society.” 

. . .

Among the report’s recommended action steps for faculty groups and others are to:

•  Propose changes to existing institutional policies where the policies are insufficient to protect faculty speech and expressive activity.
• Incorporate protective language into collective bargaining agreements.
• Remind public university governing boards, senior administrators, and legal counsel about the risks of limiting academic freedom.
• Monitor emerging cases and other activity on campus and notify the AAUP and other national faculty, higher education, and free speech groups about developments.
• File amicus briefs in support of faculty members challenging restrictions on speech.
• Publicize the issue in campus-based media and local news outlets, including by highlighting faculty contributions to the public good.
• Hold national and regional governance workshops and activities to foster awareness of the issue.
• Conduct a national analysis of handbook language on academic freedom.

The AAUP has created an online tool kit at the link above, and anyone is free to link to it or pull the opinion pieces posted there. It's a valuable resource.

Hat tip: Rachel Levinson

MM

Supreme Court Asks for SG's View on USERRA Cat's Paw Case

Today, the United States Supreme Court asked for the Solicitor General's views in a veterans discrimination case under the Uniformed Services Employment and Reemployment Rights Act (USERRA) involving the cat's paw theory of employment discrimination. Readers might remember that the Court almost decided a cat's paw discrimination case a couple of years ago, before that case was ultimatley settled before oral argument.

Recall that the cat's paw theory asks whether an employer may be found liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision undisputedly harbored no discriminatory motive toward the affected employee.

In Staub v. Proctor Hosp., U.S., No. 09-400 (decision below here), Vincent Staub, an Army Reserve member fired from his civilian job as a hospital technician in Peoria, Ill., has asked the court to review a Seventh Circuit decision overturning his USERRA jury verdict.  Staub argues that the Seventh Circuit wrongly required him to show an allegedly biased supervisor was the “functional decisionmaker” regarding termination in order to get to the jury in a “cat's paw” case.

Most federal appeals courts considering the cat's paw theory have permitted liability to be found where  someone other than the ultimate decisionmaker made the discriminatory decision as long as the utlimate decisionmaker was sufficiently influenced by that biased subordinate. 

PS

Recently Published Scholarship

Articles

• Gregg W. Kettles, Day Labor Markets and Public Space, 78 UMKC L. Refv. 139 (2009).

Student Scholarship

• Todd D. Saveland, FedEx's New "Employees": Their Disgruntled Independent Contractors, 36 Transp. L.J. 95 (2009).
• Christian Chambers, One Sided Bargain? Assessing the Fairness of Hawai'i's Workers' Compensation Law, 31 U. Hawai'i L. Rev. 553 (2009).

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Call for Papers: Int'l Conference on Employee Representation in New World of Work

Christian Brunelle (Université Laval (Québec)) writes to tell us of the call for papers for the upcoming conference Employee Representation in the New World of Work: The Dynamics of Rights, Voice, Performance and Power.  Jointly organized by the Interuniversity Research Centre on Globalization and Work (www.crimt.org) and the Canadian Industrial Relations Association (CIRA), the conference will take place in Quebec City on June 16th, 17th and 18th, 2010. Deadline for submission is November 15, 2009.  Here's a complete description:

The world of work is changing and this has tremendous implications for employee representation. Workplaces are continuously reconfigured through new information technologies and the transnational organization of production and services, economic globalization and financial crisis. Women’s labour market participation, labour migration and greater ethnic diversity are all changing the composition of workforces. New values regarding the relationships between work and career alter expectations about the balance between work and family life. The proliferation of different forms of employment is altering individuals’ relationships to their work and their life chances, increasing disparities between so-called “winners” and “losers”, with important repercussions for equality and opportunity in our societies. The search for competitive advantage through flexiblization and high-performance practices prompts some firms to enhance employee engagement, social dialogue and forms of partnership with their workforce while others seek to re-engineer or dispense entirely with employee representation.

These new realities are a challenge to traditional notions of employee representation. Crafted for the most part in the decades leading to the zenith of the industrial era (and 2010 will mark the 75th anniversary of the Wagner Act, which established some of the core tenets of employee representation in the United States and Canada), employee representation systems in the most industrialized countries were constructed on conceptions of paid full-time male employment, through the prism of Fordist work organization, in which collective representation at work, most often through unions and collective bargaining, would yield some blend of employee voice and organizational efficiency, and thereby enrich the quality of democracy in industrializing societies.

There are increasing questions about the access to and efficacy of existing forms of workplace representation, about the nature and affinity of the groups to be represented, about the possibility and coherence of grafting new rights onto older systems of representation, about disparities in voice regimes between public services and the private sector, about achieving both social and economic performance, and about the capacity of existing and emerging collective actors to negotiate these transitions, to deal with the challenges they face and to reconstruct systems of employee representation for this new world of work.

This diagnostic raises important questions for our understanding of the transformations of employee representation in comparative perspective.

• What are the founding principles that contributed to the construction of different representative systems? Are the conditions that gave rise to them still relevant?
• How do different types of employee representation regimes deal with key issues facing the contemporary workplace? What are the results for workers and their families, firms and their managers, governments and other societal stakeholders? 
• What are the emerging models and actors for employee rights, voice and representation? What are the coherence, efficacy and potential power of these contending sources and systems? What are the actor strategies for dealing with them?
• What kinds of public policy, actors, experimentation, strategies, capabilities, and research are necessary to rethink employee representation for this new world of work?

These and all other questions relevant to our understanding of the current and future dynamics of employee representation will be the focus of an international conference to be held from June 16th to 18th 2010 in Québec City, Canada. This conference is a special collaboration between the Interuniversity Research Centre on Globalization and Work (CRIMT) and the Canadian Industrial Relations Association (CIRA-ACRI). CRIMT is committed to organize an “open architecture” international conference on employee representation in the new world of work as part of its Social Sciences and Humanities Research Council Canada Major Collaborative Research Initiatives project (“Building Institutions and Capabilities for Work and Employment in a Global Era: The Social Dynamics of Labour Regulation”).  Since CIRA organizes an annual conference, it was decided that this special thematic conference will be its 47th annual CIRA conference. Other partners will also join this initiative.

The conference will take place at Laval University in the beautiful environment of Québec City. Presentations will be made in both English and French. Participants include researchers in various social science disciplines, those in charge of developing public policies and representatives of social actors and labour market partners including management, unions, legal advisers and other representative organizations. The conference is now open to multidisciplinary academic and practitioner proposals from industrial and employment relations, human resource management, labour and social law, labour studies, sociology of work and social science and other disciplines relevant to the study of work and employment.

Scholars interested in one or more of these questions (see the detailed identification of themes and questions at the end of this Call for Papers) are invited to submit an original paper proposal in English or French. The papers can be theoretical, analytical, empirical or policy-oriented. Priority will be given to studies which significantly contribute to the understanding of employee representation, either in a specific national context or from a comparative perspective. In the same perspective, we also encourage thematic proposals for workshops (four papers or three papers and a discussant) or symposiums (two linked workshops).

All proposals for this thematic call for papers, workshops and symposia should be submitted by November 15th, 2009 and will be subject to a competitive review by the Scientific Committee. Individual paper proposals should be a maximum of 2 pages and should outline the nature of the study, the methodological approach, and the main lines of analysis to be developed. The selected authors should submit a first draft of the full version of their paper by May 1, 2010, which will be made available at the time of the conference on a special Web site for participants. Workshop and Symposium proposals should be 3-5 pages in length and include details on the contribution as a whole, on each contribution (see details on papers proposals above) and on the institutional affiliations of the participants. All proposals should be sent by electronic mail to: Nicolas Roby, CRIMT Scientific Coordinator at the following address:  Nicolas.Roby@umontreal.ca. For further updates on the conference organization, check www.crimt.org or http://www.cira-acri.ca/.

Important Note: In addition to this main thematic call for papers, workshops and symposia for this joint CIRA-CRIMT conference on employee representation, there will be an additional Call for Contributions on other themes. These other contributions (papers and workshops) will be fully integrated into the conference program. The deadline for extra-thematic contributions is 15 January 2010 (see http://www.cira-acri.ca/). All proposals are subject to competitive review by the Scientific Committee.

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Labor Market Flexibility and Economic Growth

Alvaro Santos (Georgetown) has just published (Virginia Journal of Int’l L.) Labor Flexibility, Legal Reform, and Economic Development.  Here's a summary:

The current global financial crisis has provoked intense criticism of the regulatory framework for financial markets. Financial market flexibility, once considered the key to successful financial institutions and economic growth, has now come under intense scrutiny. In contrast, labor market flexibility is still promoted by scholars and international policymakers as an essential part of the recipe for economic development. I argue that the predominant understanding of labor flexibility is misguided and needs to be revised. To illustrate why, I undertake a critical examination of labor flexibility as developed by a leading World Bank project, called “Doing Business.” I argue that the Doing Business project mischaracterizes countries’ labor regulations by failing to consider the full range of legal sources, surveying mostly the law on the books, and remaining blind to the realities of lack of enforcement and rampant economic informality.

More importantly, Doing Business promotes a binary understanding of flexibility that fails to capture the relational character of legal entitlements. Proposed legal reforms in the direction of “flexibilization” can therefore be both costly and ineffective. As an alternative, I develop a framework which, incorporating insights from comparative law and legal theory, proceeds in two steps. First, my framework undertakes a doctrinal assessment of the respective rights, duties, and privileges of employers and employees in the labor market, and asks whose flexibility is enhanced. Second, my framework pays attention to the link between the formal and informal economic sectors. Using the examples of the United States and Mexico, I illustrate how this new framework can lead to a better sense of the relationship between labor law and a country’s economy, and how this framework can be used as a better map for regulatory reforms.

Here in Opinio Juris is Kathy Stone's response; here is Alvaro's reply.

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