November 28, 2009
McCormick & Oprah on the FMLA
Who does Oprah turn to when she needs advice about the FMLA? Why, own own Marcia McCormick, of course. OK, so maybe Oprah herself isn't too concerned about the question "Can I Stay Home With My New Baby?, but her website is and a recent article with that title explored the basic of FMLA leave, particularly with regard to new mothers. The article--which I'm guessing has little bit larger readership than this blog--leaned heavily on Marcia's expertise.
Check it out.
Canadian Supreme Court Ruling Favors Wal-Mart Closure
Recall the long legal saga about Wal-Mart's decision to close its store in Jonquiere, Quebec after the store became unionized. The Wall Street Journal reports today that the Supreme Court of Canada has dismissed a suit brought by several of the store's employees and supported by the UFCW. The Court ruled that the case was moot because "The Jonquiere store is closed and there is no possibility of reinstatement of the employees."
November 25, 2009
Labor and Employment Law Listservs for Law Professors
A number of people have asked me for a list of current listservs open to law professors discussing the various sub-topics within the labor and employment law field. This type of information often changes with list administrators moving to new schools or new administrators taking over. If new information is know, please provide in comments.
Below is the name of the each of the listservs, the address of the listserv, and who you should contact if you are interested in joining one of these lists. Adjuncts, visitors, and others in residence are welcome on most lists, but non-law-professors are not permitted to join on most lists. Nevertheless, interested individuals should check with the individual listserv administrators.
Employment Discrimination Law empdiscr email@example.com Paul Secunda
Work Law worklaw firstname.lastname@example.org Marty Malin
Employee Benefits benefitsprof-l email@example.com Barry Kozak
Disability Law aalsdisabilitylaw firstname.lastname@example.org Ani Satz
ADR/Arbitration aals-adr-l email@example.com John Lande
If readers know of other subject-specific listservs, please make mention of them in the comments.
District Court Issues Order in Ricci Case: Promotions for the Holidays
Via Daniel Schwartz at the Connecticut Employment Law Blog, who has been best at keeping us updated on all developments in Ricci v. DeStefano, comes the news that the district court has entered its long-anticipated order in accordance with the Supreme Court's opinion. The city was ordered to certify the results of its promotional exam and the lists of eligibility from those results. The post includes links to other great sources including the order and reactions from the firefighters. There are a couple of additional issues the district court still must consider--damages and whether there are any other grounds of liability. That briefing should be done in January.
Hat tip: PS
November 24, 2009
OSHA Advice for "Black Friday"
In preparation for the consumerist frenzy that awaits beginning some places as early as midnight Thanksgiving Day, OSHA has issued a fact sheet on crowd control for retail employers. The fact sheet governs planning, pre-event set up, during the sale, and emergency situations. Here are some examples:
- Where large crowds are expected, have trained security or crowd management personnel or police officers on site.
- Create a detailed staffing plan that designates a location for each employee.
- Based on the size of the crowd expected, determine the number of employees that are needed in various locations to ensure the safety of the event (e.g. near the door entrance and throughout the store).
- Set up barricades or rope lines for crowd management well in advance of
customers arriving at the store.
- Make sure that barricades are set up so that the customers’ line does not start
right at the entrance to the store. This will allow for orderly crowd
management entry and make it possible to divide crowds into small groups for
the purpose of controlling entrance.
- Ensure that barricade lines have an adequate number of breaks and turns at
regular intervals to reduce the risk of customers pushing from the rear and
possibly crushing others, including employees.
During the Sales Event:
- Make sure all employees and crowd control personnel are aware that the doors
are about to open.
- Staff entrances with uniformed guards, police or other authority personnel.
- Use a public address system or bullhorns to manage the entering crowd and to
communicate information or problems.
- Position security or crowd managers to the sides of entering (or exiting)
public, not in the center of their path.
There are many more pieces of good advice, all of which make these events sound like war zones. Kudos to OSHA for reminding retailers that employees are at risk too.
Silber on Congress Moving on ENDA Now
A taste from her post on the ACSBlog:
For months now, we have been waiting for congressional action on the Employment Non-Discrimination Act (ENDA), (HR 3017) and (S1584), federal legislation to end workplace discrimination based on sexual orientation and gender identity. There has been a sense that action on this bill was due shortly after work was completed on the hate crimes bill, which was signed into law last month.
Recently, House and Senate Committees held hearings on ENDA. Testimony in both chambers in favor of this measure has been compelling, illustrating the nationwide problem of job discrimination against lesbian, gay, bisexual and transgender people, outlining the inadequacy of federal law to address the issue, delineating the inconsistent patchwork of state and local laws that presently exists, and demonstrating how enacting ENDA to include its provisions among our nation's existing system of non-discrimination laws would help correct these problems . . . .
Mark-up was postponed this week, but from my perspective it should be rescheduled immediately or soon after the Thanksgiving recess. There is no reason to wait to enact this legislation, which is needed and long overdue.
Needless to say, I could hardly agree more with these sentiments.
Two New Blog Posts on Ricci by Zimmer
Mike Zimmer (Loyola-Chicago) continues his wonderful commentary on the ins and outs of the Supreme Court's controversial Ricci decision on the Concurring Opinions blog.
Since our last blog post, Mike has posted two more commentaries:
The first post concerns the relationship between disparate treatment and disparate impact law in the case.
The second post focuses on color-blind standards in a race conscious society.
In my humble opinion, anyone who is interested in understanding the impact of Ricci on employment discrimination law has got to read this series of posts by Mike.
Goldscheid on Gender Violence and Work in the United States and South Africa
Julie Goldscheid (CUNY) has posted on SSRN her working paper entitled: Gender Violence and Work in the United States and South Africa: The Parallel Processes of Legal and Cultural Change.
Here is the abstract:
This article takes on the parallel processes of law reform and cultural transformation by comparing gender violence reform projects in the United States with those in South Africa. It does so by focusing on one strand of advocacy, that focusing on the economics of abuse. Since economic independence is central to women’s ability to navigate abuse, women’s ability to work in its aftermath is critical. This article compares each country’s current and potential reform projects to address the ways gender violence impacts survivors’ ability to get and keep their jobs.Despite the stark contrasts between the countries’ respective legal and economic contexts, the challenges faced by advocates are different in degree rather than in kind. This article reviews the prevalence of gender violence in each country and the extent and nature of women’s workplace participation. It places reforms addressing the impact of abuse on employment in the broader context of each country’s domestic and sexual violence reform movements and describes employment-related projects, with a focus on those in South Africa.
The similarities and differences in economics, culture and law underscore several lessons about the possibility of achieving transformational change. The article identifies several theories under which South Africa’s progressive legal frameworks could afford recourse to survivors whose employment is adversely affected as a result of abuse. Nevertheless, the comparison highlights the inherent similarities of law reform projects that seek to transform historic biases and cultural norms. It underscores the importance of enforcement and implementation, of centering anti-subordination initiatives in the context of equality, and of maintaining the difficult and ongoing project of challenging bias in its many forms, in order to create both legal change and cultural transformation.
Another important comparative law/employment law piece that should be of interest to anyone concerned about gender issues in the workplace.
Recently Published Scholarship
- Megan E. Mowrey, Discriminatory Retaliation: Title VII Protection for the Cooperating Employee, 29 Pace L. Rev. 689 (2009).
- Sean M. Anderson, Risky Retirement Business: How ESOPs Harm the Workers They Are Supposed to Help, 41 Loyola U. Chicago L.J. 1 (2009).
- Daniel V. Dorris, Fair Labor Standards Act Preemption of State Wage-and-Hour Law Claims, 76 U. Chi. L. Rev. 1251 (2009).
November 23, 2009
New Labor and Employment ALI Members
Maria Ontiveros (San Francisco), Joanna Grossman (Hofstra), Mark Rothstein (Louisville) and current NLRB Chairman, Wilma Liebman, are four of the new members with significant labor and employment law backgrounds.
Here's a link to the press release.
Conkright Amicus Brief
One of the Supreme Court's labor and employment cases this term is Conkright v. Frommert, which addresses the question of whether a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone.
Our very own Paul Secunda, along with eight other professors, have just filed an amicus brief in the case on behalf of the respondents/employees (go here to download Law Professors' Conkright Amicus Brief in Support of Respondents).
Should be an interesting case, so stay tuned.
Woman Successful in KBR Sexual Assault Arbitration
Tracy Barker, who says a U.S. State Department employee sexually assaulted her in Iraq in 2005 has won $2.93 million in arbitration from KBR, the military contracting company that employed her. As ABC News exclusively reported, the federal government had refused to prosecute the man Barker says attacked her, even though the State Department recommended he be charged . . . .
KBR has challenged the award and wants it modified. "At no time has Ms. Barker's claim of rape ever been confirmed," said Heather Browne, the director of communications, in an e-mail to ABCNews.com.
"I was raped," Barker responded. "KBR knows that and they're wrong about that."
Makes you wonder why the feds refused to prosecute in the first place, no? We recovered a related story (no, this is not an isolated incident) back last June.
McKennirey on Reforming the Labour-Trade Linkage
David Doorey (York Univ. (Canada)) writes to tell us that a big wig Canadian official, John McKennirey, who was Canada's point person on North American Agreement on Labor Cooperation (NAALC) bargaining and held various other senior positions in the Canadian government responsible for developing trade and labour linkages, has written a short article setting out his ideas for reform of trade agreements and the labour linkage.
Mr. McKennirey has 'published' his thoughts on Reforming the Labour-Trade Linkage on David's blog. Because one of the main audiences he hopes to reach is Americans, we are pleased to post a link to it on this blog as well.
FMLA Podcast on Military Families Amendments
As some readers may be aware, in late October, President Obama signed into law several amendments to the FMLA that expand the FMLA rights of military families. The new law significantly broadens an employee's right for "exigency leave" due to military service and to care for a servicemember.Here is a link to a podcast by Jeff Nowak and his firm which describes the new changes to military family leave and highlights possible FMLA amendments to keep an eye on over the next several months.
What I find particularly interesting about these FMLA amendments is their impact on the already existing military leave provisions in USERRA. My understanding is that whereas FMLA focus on the needs of a military's persons family (qualifying exigency leave and military caregiver leave), USERRA focuses on the leave needs of the military individual.
The new amendments in October 2009 expand FMLA entitlement now applies to regular armed forced (not just reserve and guard members) and expands the leave entitlements to any military service (not just Afghanistan and Iraq). Military caregiver leave has been expanded to apply to those who are no longer currently in the military (so now applies to permanent disabilities of veterans within five years of military service and also to injuries that have been aggravated by current military service).
November 22, 2009
More Support for Two-Member Board Decisions
Add another court of appeal to the list of those supporting the NLRB's power to issue two-member decisions. This time it's the Fourth Circuit in Narricot Indus. v. NLRB. That makes it four courts (1st, 2nd, 4th, and 7th Circuits) to one (D.C. Circuit). The Fourth Circuit's holding included this analysis of Section 3(b) of the NLRA and the D.C. Circuit's decision (see here for a previous discussion of the provision):
The D.C. Circuit has reached a contrary conclusion, reading § 3(b) as creating distinct quorum requirements for the Board and designated three-member groups. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472- 73 (D.C. Cir. 2009). That court thus concluded that the phrase "except that" is "present in the statute only to indicate that the delegee group’s ability to act is measured by a different numerical value." Id. at 472. In the court’s view, the Board quorum requirement of three members "must be satisfied ‘at all times,’" regardless of whether the Board’s authority is delegated to a group of its members. Id. (quoting 29 U.S.C. § 153(b)). We disagree with this view, concluding that it is based on an overly narrow construction of the modifying phrase that directly follows the three-member quorum requirement: "except that two members shall constitute a quorum of any group designated pursuant to [the delegation provision]." 29 U.S.C. § 153(b) (emphasis added). The statutory phrase "except that" ordinarily introduces an exception. Had Congress desired to write the statute as the D.C. Circuit reads it, it would have simply omitted the words "except that" from § 3(b). The statute would then contain two independent quorum clauses, one applicable to the Board and the other to three-member groups. As it is, however, § 3(b) contains a quorum requirement applicable "at all times," except where the Board has delegated its authority to a three-member group. Because the Board made such a delegation in this case, we see the D.C. Circuit’s reading of the statute as unpersuasive.
Now it's just up to the Supreme Court to sort this mess out.
Hat Tip: Patrick Kavanagh & Dennis Walsh