February 20, 2009
Who's Watching the Watchers": Emerging Technology in the Workplace
William Herbert (Deputy Chair, NY PERB) and Amelia Tuminaro (labor and employment practioner in NYC) have just had their article, "The Impact of Emerging Technologies in the Workplace: Who's Watching The Man (Who's Watching Me)?," published in the Hofstra Labor and Employment Law Journal. Part of an interesting symposium on emerging technology and employee privacy, Herbert and Tuminaro examine issues surrounding several technological trends:
This article will examine the legal and policy issues, and practical consequences connected with certain emerging technologies in the workplace. These modern technologies, defined in each section below, are: mandatory genetic testing for disease and the collection of DNA samples for employee identification purposes, global positioning systems (“GPS”), radio frequency identification (“RFID”), and biometrics.
Herbert has done a lot of recent work with technology issues in the workplace and this article with Tuminaro reflects both authors' obvious expertise in the area.
Detailed Guidance on Kennedy v. DuPont
Albert Feuer, whose very helpful work on Kennedy v. DuPont we've used frequently (see here for the latest), is once again giving a hand to those trying to figure out how to deal with the Court's decision. After practitioners who didn't consider themselves ERISA experts asked if he could give them some detailed guidance on how to proceed in a post-Kennedy world, he's generously answered the call with his paper, "Suggestions for the Treasury, the DOL, ERISA Plan Sponsors, Administrators, Representatives of Plan Participants and Potential Beneficiaries After Kennedy v. Plan Administrator of DuPont Savings and Investment Plan." The abstract:
In Kennedy v. DuPont Savings and Investment Plan (the "DuPont Plan"), 2009 U.S. LEXIS 869 (January 26, 2009), the Supreme Court appeared to proclaim a "bright-line rule" that plan documents determine plan distributions.1 However, the Court blurred the bright-line rules applicable to (1) plan entitlements, (2) the alienation of pension benefits, (3) qualified domestic relations orders, and (4) plan distributions. The basis for much of this blurring would vanish if the U. S. Treasury ("the Treasury") and the U. S. Department of Labor ("the DOL") resumed their pre-Kennedy approach to many of these issues. Suggestions to improve post-Kennedy employee benefit practices are set forth for the Treasury and the DOL, for plan sponsors, for plan administrators, and for representatives of plan participants and potential plan beneficiaries.
As one who is definitely not an ERISA expert, I can attest to the fact that the paper is a big help in making sense of the issues involved.
Isaac Rosenberg (2008 W&M grad and aspiring l/e academic) has just posted on SSRN his article Height Discrimination in Employment. Here's the abstract:
At first blush, the concept of real height discrimination is almost laughable. After all, we don't typically think of height when we discuss types of discrimination. Yet there is no denying that we place a high premium on height, be it social, sexual, or economic, and our preference for height pervades almost every aspect of our lives. Economist John Kenneth Galbraith - who towered at 6'8" - described the favored treatment we afford taller people as "one of the most blatant and forgiven prejudices in our society." If you don't believe it, consider whether you yourself would like to be taller and, if so, try putting your finger on the reason why.
This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Specifically, this Article focuses on heightism in the workplace, particularly prejudice against short people because of the unique disadvantages they face vis-a-vis their taller counterparts. Although much scholarship has focused on other forms of trait-based discrimination - most notably weight and appearance discrimination, both of which indirectly involve height as a component - little if any treatment has been given to pure height discrimination. Thus, this Article aims to fill that gap by examining the ways that existing federal antidiscrimination laws - namely Title VII and the Americans with Disabilities Act of 1990 - do and do not protect against height-based prejudice in the workplace. Moreover, after briefly examining state and local remedies for height discrimination, including state antidiscrimination laws, this Article considers but ultimately rejects enacting a federal law that would flatly prohibit height-based employments decisions. Although a comprehensive prohibition would be easiest to administer, such a prohibition would prove both gratuitous and unwise.
February 19, 2009
Glazer & Kramer Explain Transgender Discrimination in Terms of Transitional Identity
Transgenderism is in transition. The recent decision in Schroer v. Billington offers transgender plaintiffs hopeful precedent, but it is as yet unclear whether other courts will rule the same way in cases of transgender discrimination. This Essay, prepared for the Temple Political and Civil Rights Law Review symposium on transgender rights, argues that in order to ensure more consistent results in cases of transgender discrimination, courts should embrace an understanding of transitional identity. Transitional identity is identity that borrows from one or more extant identities, but which is inchoate, in that the identity does not express fully any of those extant identities. For instance, a religious convert has a transitional identity, because her identity borrows from the religion from which she is converting as well as the religion to which she will convert. Similarly, a transgender person has a transitional identity, because the person's identity borrows from the gender or sex from which the person is transitioning as well as the gender or sex to which the person will transition. This Essay argues that an understanding of transitional identity is preferable - in that it provides a more stable foundation upon which to fight the battle against transgender discrimination - to the prevalent understanding of transgender identity as gender nonconformity.
An overview of transgender discrimination cases in Part I demonstrates the confused conception of transgender identity that has animated courts' decisions. Part II describes what is meant by "transitional identity," and explains how an understanding of transitional identity in antidiscrimination law benefits not only transgender plaintiffs, but antidiscrimination law as a whole. Part III draws on intersectionality theory in developing a theory of transitional discrimination, which is discrimination on the basis of transitional identity. A brief conclusion summarizes this Essay's ideas.
Transgender discrimination has quickly become a hot topic, and justifiably so. See other articles on the topic by Glazer & Kramer, by Rick Bales & Katie Koch, by Paisley Currah, and by L. Camille Hebert.
Recently Published Scholarship
- Kevin S. Marshall, The Unfair Trade Practice of Hiring Illegal Alien Workers, 11 U. Pa. J. Bus. L. 49 (2008).
- Martin H. Malin & Monica Biernat, Do Cognitive Biases Infect Adjudication? A Study of Labor Arbitrators, 11 U. Pa. J. Bus. L. 175 (2008).
- Daniel T. Lloyd, An Analysis of the Circuit Split Regarding the Scope of Arbitration Clauses in Collective Bargaining Agreements, 11 U. Pa. J. Bus. L. 237 (2008).
- Jessica Reed, From Pickering to Ceballos: The Demise of the Public Employee Free Speech Doctrine, 11 NYC L. Rev. 95 (2007).
February 18, 2009
WSJ on Discrimination Claims
Readers of this blog are well aware of some of the recent scholarship on employment discrimination claims in federal court. The Wall Street Journal has picked up the story--tying the trends to the Ledbetter Act among other things--and discussed studies by Kevin Clermont and Stewart Schwab (both at Cornell) and Joe Seiner (South Carolina). Some excerpts from the WSJ story:
Workers recently gained new ammunition to file job-discrimination cases in federal court, but they still face long odds against emerging victorious. A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs. They also get less time in court, with judges quicker to throw out their cases. . . .
Just because more workers have standing to sue doesn't mean that they will receive a better reception in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%, according to a study to be published this month by the Harvard Law & Policy Review. "Judges demand more of discrimination cases than other types of cases," says Stewart Schwab, a co-author of the study and the dean of Cornell University Law School. . . .
Even the federal courts have detected the pattern of more dismissals in discrimination cases, though they surmise different reasons for it than do plaintiffs' lawyers. A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination cases through summary judgments, before the suits reached trial. In 90% of those cases, it was the employers who requested the summary judgment. In contrast, the study found, 3% of contract cases and 1.7% of personal-injury and property-damage suits were dismissed via summary judgments. . . .
Equally troubling to critics, though, is that federal judges also now routinely terminate employment-discrimination cases through motions to dismiss, meaning that the plaintiffs aren't allowed to conduct fact finding to support their claims, according to a law-review study due to be published in August by the University of Illinois College of Law.
The study analyzed the impact of the U.S. Supreme Court's 2007 ruling in Bell Atlantic Corp. v. Twombly, which authorized federal judges to dismiss cases unless plaintiffs can detail enough facts in their initial complaints to state a "plausible" claim -- a higher standard than previously existed. Although the Twombly case involved an antitrust dispute, it has since been applied broadly to discrimination cases, says Joseph Seiner, a professor at the University of South Carolina School of Law, who wrote the study.
As an example of the kind of case that has suffered, Mr. Seiner pointed to Mangum v. Town of Holly Springs, in which a North Carolina federal judge last year dismissed a female firefighter's claim that she had been subjected to a hostile work environment. The judge cited Twombly in dismissing the sexual-harassment claim. Mr. Seiner says "such a harassment allegation should at least get to the stage where you take depositions."
The full articles are worth the read and, hopefully, will be part of a much longer discussion on this topic.
Possible UAW Agreement
It doesn't appear set in stone yet, but UAW president Ron Gettelfinger has announced that the union has reached a tentative agreement with the automakers as part of bailout negotiations that GM and Chrysler are currently dealing with. According to the Washington Post, with some nice quotes from Charlie Craver (George Washington):
The plans are expected to accelerate wage reductions, job cuts and loss of benefits, changes already spurred by foreign competition, declining sales and the worst economic conditions since the Great Depression. . . .
While declining to detail the concessions, Gettelfinger said the union is in discussions with the automakers over their Voluntary Employee Beneficiary Associations, the funds to which the companies have contributed hundreds of billions of dollars to pay retirees' health-care costs. Some auto analysts suggested that the companies would need to eliminate or substantially reduce retiree benefits to stay afloat.
Analysts also said the developments are being closely watched by other unions and that the automakers' plans could play a role in undoing gains won over time in the labor movement. The UAW "was the most successful industrial union in the country," said Charles Craver, a labor employment law professor at George Washington University. But "right now employers are vehemently anti-union," Craver said. "They will use this as an opportunity to tell workers, 'This is what happens when you get a union.' " . . .
Craver . . . said the only way for automakers to cut retirees' health costs might be to file for bankruptcy. Negotiating with the retirees might be difficult because they are not union members. "The UAW doesn't represent them," Craver said. If GM and Chrysler can't get "the retirees to agree to it, they will have to go to bankruptcy . . . to substantially alter the pension and health care."
For more background on the 2007 VEBA agreement, see here, here, here, and here. Although some in the labor movement weren't happy with the VEBA plan, they're no doubt far less happy to see it go in this manner.
February 17, 2009
ADR in Labor & Employment
I've been at the ABA LEL Section, ADR in Labor & Employment Law Committee Midwinter Meeting in Key West for the last 3 days. The panels have been fantastic. Today, Ted St. Antoine led off by discussing the Due Process Protocol and the National Academy of Arbitrators' draft guidelines for employment arbitration. We then heard an update on recent labor/employment arbitration cases, followed by a spirited discussion of the Penn. Plaza v. Pyett case. The day ended with an incredibly enlightening discussion of the intricate ethical issues faced by arbitrators hearing class action cases.
Secunda on Retaliation and Whistleblowers
Congratulations to Paul Secunda, editor, on the publication of Retaliation and Whistleblowers: Proceedings of the New York University 60th Annual Conference on Labor (Proceedings of the New York University Annual Conference Series). The publisher is Kluwer Law International.
Stimulus Bill's Whistleblower Protections
The Employment Law Group Blog has a summary of the new stimulus bill's whistleblower protections. The whistleblower provisions cover all contractors, governments, or other non-federal employers that receive funds made available by the stimulus. Protected disclosures include the usual suspects of gross waste, illegal conduct, abuse of authority, and others. However, the blog states that the bill has several provisions that are much more favorable to whistleblowers than current rules, including coverage of internal disclosures and a "contributing factor" burden of proof.
Check out the post for a full description.
February 16, 2009
GM/UAW Bailout Negotations
With a looming March 31 deadline for automakers to submit restructuring plans to justify federal bailout money, GM and the other automakers are talking with the UAW. Apparently, the major sticking point at GM is the expensive retiree health care plan that the parties agreed to in 2007. Things are still murky, but it looks like both sides are working hard to reach an agreement. According to the New York Times:
G.M. will file what is expected to be the largest restructuring plan of its 100-year history on Tuesday . . . . The plan will outline in considerable detail, over as many as 900 pages, how G.M. will further cut its work force, shutter more factories in North America and reduce its lineup of brands to just four, from eight, according to executives knowledgeable about its contents. . . .
But G.M.’s plan to shrink its way to profitability will not mean much without an agreement with the U.A.W. On Monday, G.M. pressed union leaders in a meeting in Detroit for a deal on financing what was the centerpiece of the 2007 U.A.W. contract — a perpetual, G.M.-financed trust to cover health care costs of hundreds of thousands of retired hourly workers and their surviving spouses. Both sides were hopeful that either an agreement, or at least significant progress, might be achieved by the time G.M. submitted its plan, according to three people familiar with the substance of the negotiations. . . .
The company has already extended buyout offers to its entire United States unionized work force to reduce their ranks by another 20,000 jobs. It has also announced a 14 percent reduction in salaried workers around the world, leaving many of its white-collar workers in Detroit with limited prospects. The plan will also probably include revisions in executive compensation and targets for cutting dealers and brands like Saturn and Pontiac. . . .
The U.A.W. talks . . . have been constant since Saturday, when Ron Gettelfinger, the union’s president, at one point cut off discussions with G.M. — only to drive across town to take up the topic of retiree health care with Ford. Ford has not received government loans, so it is significant that the U.A.W. appears to believe it must address retiree health care at all three Detroit auto companies simultaneously.
G.M. has the most at stake with the U.A.W. Its future obligations for retiree health care are estimated at $47 billion, and by next year it is required by its contract to contribute more than $10 billion to the trust set up in 2007. The company, which nearly ran out of money before receiving the first $9.4 billion of its $13.4 billion in late December, is pressing the U.A.W. to accept stock for as much as 50 percent of its next contribution to the trust, according to two people knowledgeable about the discussions.
Mr. Gettelfinger, for his part, is trying to protect one of the jewels of the U.A.W. contract, which is essentially health care for life for anyone who worked on the assembly line and their surviving spouses. G.M. has already canceled health care for more than 100,000 of its salaried retirees. “The U.A.W. at this point understands that it can very well turn into the villain of this whole thing by insisting that its workers receive health care benefits that few workers do,” said Gary N. Chaison, a labor expert at Clark University in Worcester, Mass.
I know this a broken record, but doesn't anyone find it significant that the health care problem would not exist (at least it wouldn't disproportionately burden certain companies) if we had some form of national health insurance?
Ninth Circuit Grants Rehearing on Class Certification in Gender Class Action against Wal-Mart
You may recall that way back in February of 2007, the Ninth Circuit issued a decision upholding class certification of all women who worked for Wal-Mart or Sam's Club against the parent company for gender discrimination in promotions. The court withdrew that opinion and issued a new one in December of 2007. We've blogged about the certification and related issues here, here, here, here, and here.
Shortly after the new opinion was issued, Wal-Mart filed a petition for rehearing en banc, which was finally granted last Friday. Howard Bashman has blogged about it and included a bunch of great links--you have to scroll down a little to see the entry.
When the briefs are filed and the matter set for argument, we'll let you know.
Hat tip: Paul Secunda