December 18, 2009
Hart on Supreme Court Extremism
Melissa Hart (Colorado) has just posted on SSRN her article (12 Employee Rights & Employment Policy J. 253) Procedural Extremism: The Supreme Court's 2008-2009 Labor and Employment Cases. Here's the abstract:
It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions decisions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five justices in the majority were willing to sidestep or ignore to reach their desired outcomes. In Gross v. FBL Financial Services and 14 Penn Plaza v. Pyett, the Court ignored - and essentially overruled - long-settled precedent. In Ricci v. DeStefano, the Court took upon itself the role of fact-finder, resolving disputed facts in the underlying record as it applied a newly-minted legal standard to the case. And in Ashcroft v. Iqbal, the Court completed what was essentially a revision of the pleading rules, articulating a standard under Federal Rule of Civil Procedure 8 that imposes particular burdens on plaintiffs - like those in employment discrimination disputes - whose claims include an element of intent. Together, these four opinions demonstrate that the Court’s current reputation for incrementalism - at least in this important area of civil rights - is unwarranted.
FMLA Insight Podcast: Holiday Edition
· If an employee is taking FMLA leave on a holiday, do I count the day against the employee's FMLA allotment?· Do I count FMLA leave against employee during winter or spring break, a brief plant shutdown or furlough period?
· Do I pay employees for holidays occurring during their FMLA leave?
Here is the link.
Title VII Arbitration Nuked for Gov't Contractors and Subs
Michael Fox has an extensive post over at Jottings by an Employer's Lawyer on the Franken Amendment to the Defense Appropriations Bill. The Amendment bans predispute arbitration agreements pertaining to all Title VII claims and to any tort arising out of a claim for sexual harassment. The Amendment has passed the House, Senate, and a conference committee. It applies to both contractors and subcontractors performing work for the federal government.
December 16, 2009
Study on Effects of Manager's Race on Hiring
The Journal of Labor Economics has an interesting study in its most recent issue (October 2009) about the patterns of hiring that managers of different races exhibit. According to the study, white, Asian, and Hispanic managers tend to hire more white and fewer black employees than do black managers. The article, Laura Giuliano, David I. Levine, and Jonathan Leonard, Manager Race and the Race of New Hires not only documents the pattern but also offers some explanations:
Using more than two years of personnel data from a large U.S. retail chain, the study found that when a black manager in a typical store is replaced by a white, Asian or Hispanic manager, the share of newly hired blacks falls from 21 to 17 percent, and the share of whites hired rises from 60 to 64 percent. The effect is even stronger for stores located in the South, where the replacement of a black manager causes the share of newly hired blacks to fall from 29 to 21 percent. . . .
How strong is the impact? Consider a typical store with 40 employees located in the Southern U.S. According to the data, replacing a black manager with a non-black manager would result in the replacement of three to four black workers with white workers over the course of one year.
“From the viewpoint of a district manager who is observing just a small sample of stores, this change might go unnoticed or appear insignificant,” Giuliano said. “However, the change may appear more significant from the point of view of job seekers—and especially black job seekers. In fact, the change in non-Southern stores amounts to a proportional decline of 15 percent in the number of blacks employed.”
The data used by Giuliano and her colleagues were especially well suited to sorting out the role race plays in hiring. While previous studies have also suggested that manager race plays a role, those studies have been unable to distinguish that role from other factors such as the demographic makeup of the local labor pool. Giuliano and her colleagues were able to isolate the race factor by tracking individual stores that experienced a change of manager.
“This means we can compare the hiring patterns of consecutive managers of different races in the same store,” she said. “Hence we can isolate the effect of a manager’s race by comparing the hiring patterns of managers when they hire from similar labor pools under similar conditions.”
The study also found that in locations with large Hispanic populations, Hispanic managers hire more Hispanics and fewer whites than do white managers, but that was only true when Hispanics made up 30% or more of the population of the area.
Some of the cause is related to patterns of residential segregation. Managers of all colors tended to hire people who lived close to them, so to the extent that black managers lived in neighborhoods that were predominantly black, Hispanic managers lived in neighborhoods that were predominantly Hispanic, and white managers lived in neighborhoods that were predominantly white, their hiring pools also tended to be primarily of their own race/ethnic background. Another reason that more black employees were hired by black managers may be due to white applicants self-selecting out. When a white manager is replaced by a black manager, the rate at which white workers quit rises by 15%.
So takeaways seem to be both that race of management matters when we think about real equal opportunity and that residential diversity/segregation is inextricably intertwined with employment diversity/segregation.
Stone Receives Named Professorship
Many congratulations to Katherine Stone, who has been named the Arjay and Frances Miller Professor of Law at UCLA.
Kathy was awarded a Guggenheim Fellowship Award in 2008 and a Russell Sage Fellowship for 2008-2009 for her work on the changing nature of employment and the regulatory implications. Her forthcoming book, Globalization and Flexibilization: The Remaking of the Employment Relationship in the 21st Century, will examine the changing employment landscape in Japan, Australia, and Europe.
Kathy has been a member of the faculty of the UCLA School of Law since 2004. Previously, she was Professor of Law at Cornell Law School and Anne Evans Estabrook Professor of Dispute Resolution at Cornell School of Industrial and Labor Relations. She has also taught at Yale Law School, Stanford Law School, the University of Chicago Law School, New York University Law School, and the Benjamin N. Cardozo Law School. Professor Stone received her B.A. magna cum laude from Harvard University and her J.D. cum laude from Harvard Law School. She practiced law at Cohen Weiss & Simon and at Rabinowitz Boudin Standard Krinsky & Lieberman in New York City.
New Report from the Center for WorkLife Law: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination
Stephanie Bornstein, Associate Director of the Center for Worklaw Life at Hastings Law, sends us news of a New Report from the Center for WorkLife Law: Caregivers as a Protected Class?: The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination by herself & Robert J. Rathmell.
From the report:
You can read the complete press release here and the full report here.
At least 63 local governments in 22 states—including some of the nation’s major urban areas—have passed employment anti-discrimination laws that go beyond federal and state statutes to ensure that those with caregiving responsibilities are not discriminated against at work. Cases filed under these local laws, such as one recent decision in Chicago, have the potential to result in substantial damages, fines, and attorneys fees.The Center for WorkLife Law at the University of California, Hastings College of the Law has released the first comprehensive nationwide survey of state and local laws that prohibit family responsibilities discrimination, or FRD. The laws surveyed specifically include parental status, familial status, or family responsibilities as a protected class in employment protections—similar to sex, race, and religion. Most call for administrative redress, fines, or injunctive relief. Many allow for monetary awards for damages, some including punitive damages and attorneys’ fees.
AALS Labor Relations and Employment Law Section Annual Newsletter
As this year's Chair of the AALS Section on Labor Relations and Employment, I am delighted to include in this blog post the 2010 AALS Section on Labor Relations and Employment Law Annual Newsletter. Rachel Arnow-Richman (Denver) and Ann McGinley (UNLV) did a wonderful job putting the newsletter together in their capacities as Chair-Elect and Secretary of the Section, respectively.
All of the officers of the section look forward to welcoming you in New Orleans to both the Section Lunch on Thursday (yes, I said Lunch, not Breakfast!) and Section Panel on Saturday which will feature a distinguished panel (including the head of NIOSH) on the Future of OSHA Reform. We hope you will join us!
Yamada on Workplace Bullying in Healthcare
David Yamada (Suffolk) began yesterday a series of posts, on his blog Minding the Workplace, about workplace bullying in healthcare. The Joint Commission, an independent, non-profit organization that accredits health care organizations and programs, has issued two standards on intimidating and disruptive behaviors at work, citing concerns about patient care. These standards are now part of the Joint Commission’s accreditation provisions. As Michael Fox points out in Jottings by an Employer's Lawyer, these standards are a big deal in the healthcare industry.
December 15, 2009
Walsh Appointed FLRA Deputy General Counsel
Dennis Walsh, former member of the NLRB and long a friend of this blog, has been appointed Deputy General Counsel at the Federal Labor Relations Authority. The announcement suggests that he will help spearhead an effort to improve the FLRA's case handling procedures, for which his extensive NLRA experience should be useful. From the announcement:
Mr. Walsh served as a Member of the NLRB on three occasions: January 2006 to December 2007, under a recess appointment by President Bush; December 2002 to December 2004, after being nominated by President Bush and confirmed by the Senate; and December 2000 to December 2001, under a recess appointment by President Clinton. Since December 2007, he has served as a Special Assistant in the Division of Enforcement of the NLRB and a Deputy Assistant General Counsel in the NLRB General Counsel’s Division of Operations. He was Chief Counsel to NLRB Member Wilma B. Liebman from 1997 to 2000 and to former Member Margaret A. Browning from 1994 to 1997. He began his legal career in 1984 as an NLRB attorney in the Office of Representation Appeals, and continued to work for various NLRB offices, including former Member Patricia Diaz Dennis, the Appellate Court Branch, and the Philadelphia, PA Regional Office (Region 4). From 1989 to 1994, he practiced law with Spear, Wilderman, Borish, Endy, Browning & Spear in Philadelphia. Mr. Walsh has been an Adjunct Professor of Labor Law at Howard University School of Law for several years. He is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review, and a 1976 summa cum laude graduate of Hamilton College.
Best of luck and congratulations.
EEOC to Get Backlog Funding
The National Law Journal reports that the EEOC is slated to get $23 million to help it reduce its backlog of 70,000 charges. Some important notes from the article,
The resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination.
Meanwhile, the agency has watched staffing levels shrink 25% in recent years, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators.
The EEOC has struggled with being underfunded pretty much since its inception and pretty much regardless of which party holds the White House or Congress. And according to the article, management side lawyers find the backlog troubling, too. As one attorney quoted said "Having investigators who have more time to actually look into these things and look into them more promptly — it's in the best interest of the party whose position is correct."
Turner on the Authority of the Two-Member NLRB: Statutory Interpretation Approaches and Judicial Choices
Ronald Turner (Houston) has posted on SSRN his forthcoming article in the Hofstra Labor and Employment Law Journal: On the Authority of the Two-Member NLRB: Statutory Interpretation Approaches and Judicial Choices.Here is the abstract:
Is the National Labor Relations Board statutorily empowered by and under Section 3(b) of the National Labor Relations Act to issue decisions and orders when the membership of this five-member agency falls to two active members? This important question, now before the United States Supreme Court, has been considered by several federal courts of appeals in recent rulings addressing challenges to the two-member Board’s adjudicatory power and decision making authority. This essay focuses on the interpretive theories adopted, methodologies employed, and adjudicative choices made by the courts of appeals grappling with the Section 3(b) quorum issue, and argues that the best reading of Section 3(b) and that provision’s requirement that “three members of the Board shall, at all times, constitute a quorum of the Board” is one which terminates the two-member Board’s decisional authority.
I think Ron might be right from a statutory perspective, but I wonder whether the Supreme Court will have mercy on the Board and save its two--member decisions for prudential reasons. Still not sure when the Senate will get around to confirming the three Board nominees, though my understanding is that there might be hold on Craig Becker's nomination.
Brown on Conference on China's Social Security Draft Law
Professor Ron Brown in China co-sponsored with Peking University Law School a two-day Conference on China’s Social Security Draft Law comparing it with U.S. Law and presented a paper on that topic. Professor Karen Rothenberg, former Dean at the University of Maryland Law School and a recent visitor to UH Law School, also participated, presenting a paper on the U.S. Health System law and the new health law reforms in Congress. It was attended by 50 participants, including from the National People’s Congress’ Law Committee, the State Council’ Legislative Affairs Office, the Ministry of Labor and Social Security, the Academy of Social Sciences, the All China Federation of Trade Unions, lawyers, and academic experts from the leading law schools in China. The papers and proceedings will be published the Peking University Press. Professor Brown will conduct a follow-up Conference later next year.
Ron has established himself as one of the top Chinese scholars in the United States focusing on labor and employment law issues. As someone else who is invested in the future development of the field of international and comparative employee benefits law, I am very excited by these developments.
9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases
The Ninth Circuit adopted the view of the Seventh Circuit and ruled that when a plaintiff brings a retaliation claim under the Americans with Disabilities Act, compensatory and punitive damages are not available, nor is a jury trial. See Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec 11, 2009). Who says the Ninth Circuit is liberal?
Hat tip: P.S.
NYT Has 411 on Unemployment Compensation Benefits
Bucks, the New York Times blog on making the most of your money, has this informative post (fourth of a series) on the ins and outs of unemployment compensation benefits. It is tilted a little towards New York law, but some of the principles apply across the United States.
Here is a sample of the helpful Q&A with Andrew Stettner, Deputy Director of the National Employment Law Project (NELP):
I am on extended benefits now, receiving fairly good benefits based on my salary as an executive in the financial services sector. I live in an area of the state that is more job-depressed than average, and the only positions I can even apply for are barely over minimum wage. I job search exhaustively, but with no luck, and so must submit my résumé to these lesser-paying positions. If it should happen, must I accept a job offer that pays me less than what I am receiving on the extended benefits program?
Posted by Pam
While the work search rules under the extended benefits program are stricter than regular state unemployment benefits, for an offer of work to be considered suitable, it must pay wages at least equal to you weekly benefit rate.
Needless to say, some helpful advice on this post when too many out there are finding it necessary to learn more about unemployment benefits.
Hat Tip: Jesse Dill
December 14, 2009
Long on Thompson Third-Party Retaliation Case Update
From the king of all things "retaliation against an employer's family or friends," Alex Long (Tennessee), who has written previously on this topic, has the latest update on the Thompson case:
SCOTUSblog reports that the Supreme Court has invited the Solicitor General to file a brief expressing the views of the United States in Thompson v. North American Stainless. Thompson involved an employee, Eric Thompson, who was allegedly fired because his then-fiancée, Miriam Regalado, had filed a charge of sex discrimination with the EEOC over the actions of their shared employer. In a fractured en banc decision, the Sixth Circuit Court of Appeals held that Thompson did not have a retaliation claim under § 704(a) of Title VII.
The petitioner’s brief (co-authored by Eric Schnapper of the University of Washington) correctly notes the rise in recent years in the number of these kinds of claims of associational or third-party retaliation. As framed by Petitioner, the questions presented are whether § 704(a) forbids an employer from retaliating when an employee engages in protected activity under the statute (such as filing an EEOC charge) “by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity,” and, if so, whether the third party may enforce § 704(a)’s prohibition in a civil action.
Other employees in Thompson’s shoes have discovered that the language of § 704(a) makes it tough to bring such a claim since § 704(a) only prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (emphasis added) Since it was Thompson’s fiancée, not Thompson, who had engaged in protected activity, the Sixth Circuit concluded that Thompson had no claim. The majority of federal courts have agreed.
In an effort to sell the importance of this case to the Court, Petitioner argues that third parties, such as Thompson, who suffer reprisals stemming from the actions of a co-worker effectively have no remedy under Title VII. The result is that employers are essentially permitted to make a mockery of § 704(a)’s prohibition of retaliation. In addition, Petitioner points out that while the majority of courts have held that third parties have no claim under § 704(a), the courts are split as to whether other federal statutes permit such claims. Respondent’s Brief in Opposition responds that the statutory language is unambiguous. Moreover, the effect of permitting such third-party claims would be “chaos” in the workplace as employers would be reluctant to take disciplinary action against their employees for fear that pretty much anyone in the workplace might then claim retaliation based on the actions of a co-worker. This perhaps explains Petitioner’s attempt to frame the question as whether it is unlawful to inflict reprisals “on a third party … closely associated with the employee who engaged” in the protected activity. (emphasis added).
Petitioner’s primary legal argument involves a separate section of Title VII that might allow him to sidestep the problematic language of § 704(a). Section 706(f)(i) permits a “person claiming to be aggrieved” to bring a civil action. Although Thompson may not have personally engaged in protected activity, he was nonetheless aggrieved by the employer’s reprisals stemming from the actions of his fiancée, who had actually engaged in protected activity. Thus, Thompson has a right to sue. According to Respondent (and the Sixth Circuit), § 706(f)(i) is all about standing. Thus, the question whether Thompson had standing under § 706(f)(i) is separate from the question of whether he has a cause of action under § 704(a).
Stay tuned for the Solicitor General’s thoughts on the matter …
You can also read Alex's article on this topic.
Supreme Court Grants Cert in Quon Privacy Case
The Supreme Court has just granted cert. in Quon v. Arch Wireless the Ninth Circuit case in which the court held that employees have a reasonable expectation of privacy in the body of their text messages (see here and here for our past posts on the case). The cert. petitions (there were cross-petitions) raised the following questions:
2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.
3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.
There was a cross-petition seeking review of the Ninth Circuit's Stored Communications Act holding, but it doesn't appear that the Supreme Court granted cert. on that. Also, it's worth checking out Bill Herbert's article, "The Electronic Workplace: To Live Outside the Law You Must Be Honest," which discusses Fourth Amendment issues with electronic workplace communications among other issues.
Veterinarians Get Tough on Employee Unclean Hands
A brand-new product, HandGiene Hand Wash Monitoring System, is taking no prisoners. With a slogan that reads, “Education is the key, but monitoring and accountability is the answer” it appears that this patented hand wash system is determined to stamp out H1N1 (and hand washing slackers), all at the same time. How? Well, by tracking employees’ compliance of course. The idea is that by improving hand washing compliance, patients will receive better care, since the risk of becoming infected with pathogens, bacteria, or viruses from a veterinary professional’s hands would be reduced. Good news for practice owners, since contaminated hands can be a huge liability. Bad news for employees that don’t like being tracked like a herd of endangered animals.
Yeah, there are some employee privacy concerns here, but as I tell my students in employment law class, there are not many privacy rights in the private sector workplace. For instance, an intrusion upon seclusion privacy claims requires a legitimate expectation of privacy and an intrusion that is highly offensive to a reasonable person. Does being spied on to see if you wash your hands after going to the bathroom meet that standard?
Hat Tip: Marty Greer
December 13, 2009
UK Looking for Distinguished Visiting Professor
Mary Davis (U. Kentucky) writes to tell us:
The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2010-11 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter. Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.
Inquiries and applications should be directed to Mary.