Saturday, April 17, 2010
The non-two-member NLRB is now up and running. Soon after Craig Becker and Mark Pearce were sworn in as the third and fourth Board members, the first three-member panel decision is out from this Board. It's not going to make waves on its own--it's a 10(k) work dispute case--but is a nice showing that the new Board members are already hard at work.
Hat Tip: Justin Keith
Recent EEOC and BLS data is showing an increase in the number of sexual harassment claims filed by men. Such claims have gone up 12% over the last three years and now stand at 16.4% of all sexual harassment claims filed with the EEOC. Part of the reason may be that more men have lost their jobs during the recession and, as readers know, when it's harder to find work, employment claims tend to rise. Indeed, states with particularly severe unemployment--like California, West Virginia, and Michigan have seen a comparably problem with male harassment claims. Although, interestingly, the highest rate is Utah, which has a low unemployment rate, but sees 32.% of its sexual harassment claims being made by men.
Anecdotal evidence also indicates more male-on-male harassment claims. Not clear why the rise though.
Hat Tip: Lindsay Murchison
- Mark C. Weber, Unreasonable Accommodation and Due Hardship (147).
- Meredith Render, Gender Rules (135).
- Carola Frydman (left) & Dirk Jenter (right), CEO Compensation (135).
- Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated Disclosure (110).
- Robert Flannigan, Fact-Based Fiduciary Accountability in Canada (98).
- Kelli Kleisinger & Richard A. Bales, The Validity of the Two-Member NLRB (97).
- Randall S. Thomas & Harwell Wells, Executive Compensation in the Courts: Board Capture, Optimal Contracting and Officer Fiduciary Duties (95).
- Edward D. Kleinbard, The Congress within the Congress: How Tax Expenditures Distort our Budget and our Political Processes (92).
- Ellen Dannin, Hoffman Plastics as Labor Law – Equality at Last for Immigrant Workers? (91).
- Jeffrey M. Hirsch, Communication Breakdown: Reviving the Role of Discourse in the Regulation of Employee Collective Action (88).
Thomas Kuttner (U. New Brunswick) has just posted on SSRN his article The Right to Collective Bargaining in the Canadian Constitution. His article comes hot on the heels of Eric Tucker and Judy Fudge's article arguing that Canadians have a constitutional right to strike. Here's the abstract:
In the British Columbia Health Services case, the Supreme Court of Canada surprised the labour law community by reversing over twenty years of entrenched jurisprudence. Ever since the 1987 Labour Trilogy, the Court had consistently excluded the institution of collective bargaining from the protective embrace of the Charter's s. 2(d) guarantee of freedom of association. In British Columbia Health Services, it included collective bargaining within the reach of that embrace. British Columbia Health Services then, joins that constellation of recent public law decisions of the Court in which it quite dramatically has reversed what had been heretofore understood to be settled law.
Is there a jurisprudential force which draws these several cases into a single constellation and so explains a commonality of outcome? The author suggests that what we are witnessing is a maturing of our Charter jurisprudence as the Court gradually and ever more boldly departs from the dominant mode of deontological jurisprudential inquiry which characterized the common law and its narrow focus on the parties before the court; and more consciously espouses an openly instrumentalist or consequentialist mode of jurisprudential inquiry, one which looks beyond the immediate parties before the court to the broader sociological implications of the disputes it is called upon to determine.
Friday, April 16, 2010
The Supreme Court on Friday afternoon ordered lawyers in a case argued March 23, testing the powers of the National Labor Relations Board, to file new briefs on the effect of new appointments to the Board. The order, requiring briefs to be filed simultaneously on April 26, is here. The case is New Process Steel v. NLRB (docket 08-1457). The question at issue is spelled out here. On March 29, Solicitor General Elena Kagan notified the Court that President Obama had made two appointments to the Board, but did not comment on the effect that might have on the case. The case involves the Board’s authority to make decisions with only two members taking part; the Board’s full membership is set at five.
My best guess on this new development is that the Court is wondering whether the recess appointments to the Board, which ups its membership from 2 to 4, has any impact on ripeness of the case to be decided. I would think not since the Court's decision will determine whether some 600 cases need to be redecided by the four-member Board now.
The New York Times has an interesting story today about a new study of census figures on immigrants and employment. In its report, Across the Spectrum, the Fiscal Policy Institute looked at the range of jobs that immigrants hold in the twenty-five largest metropolitan areas of the United States. The story reports on immigrants in St. Louis (my current home), one of the metro areas focused on:
more than half of the working immigrants in this metropolitan area hold higher-paying white-collar jobs — as professionals, technicians or administrators — rather than lower-paying blue-collar and service jobs.
Among American cities, St. Louis is not an exception, the data show. In 14 of the 25 largest metropolitan areas, including Boston, New York and San Francisco, more immigrants are employed in white-collar occupations than in lower-wage work like construction, manufacturing or cleaning.
The data belie a common perception in the nation’s hard-fought debate over immigration — articulated by lawmakers, pundits and advocates on all sides of the issue — that the surge in immigration in the last two decades has overwhelmed the United States with low-wage foreign laborers.
Over all, the analysis showed, the 25 million immigrants who live in the country’s largest metropolitan areas (about two-thirds of all immigrants in the country) are nearly evenly distributed across the job and income spectrum.
This data has important implications for public perceptions related to immigration policy. As the story notes, another recent study by Jens Hainmueller (MIT) and Michael J. Hiscox (Harvard) showed that people in the U.S. are inclined to welcome immigrants from higher socio-economic classes, but oppose immigration of people from the lower socio-economic classes. This probably makes significant intuitive sense. Those from higher classes are seen as benefiting the economy (contributing more than they require in public services), while those from lower classes are seen as a burden (contributing less than they require in public services).
It would be interesting to know how ethnic/national origin stereotypes then fit into people's perceptions of class. If you know of any, particularly in the immigration context, let us know in the comments.
Thursday, April 15, 2010
Marcia, Jeff, Paul, and I are thrilled to announce the addition of Charlie Sullivan as a fifth permanent editor of Workplace Prof Blog. Charlie's posts over the last several months have added real depth and insight to the Blog. We are exceptionally happy to have him on board.
Charlie has taught at Seton Hall since 1978; before that, he taught at the University of Arkansas-Fayetteville and the University of South Carolina. His books include Employment Discrimination: Law & Practice; Cases and Materials on Employment Discrimination; Cases and Materials on Employment Law; and Employment Law: Private Ordering and Its Limitations. Recent articles include The Puzzling Persistence of Unenforceable Contract Terms, ___Ohio St. L. J.__ (2010) and Raising the Dead?: The Lilly Ledbetter Fair Pay Act, 84 Tul. L. Rev. 499 (2010). He teaches Employment Discrimination, Employment Law, Legal Research & Writing, and Contracts.
Just over a year ago, I posted a story about racial tensions in the town of Paris, Texas. There had been a murder that had racial elements, and Department of Justice community mediators had been called in. In addition, charges of employment discrimination at Turner Industries, a pipe fabrication plant, had surfaced. The EEOC has now made a finding of cause to believe that discrimination has occurred and is seeking to conciliate the matter.
According to a CNN report:
Black employees at the Turner Industries plant in Paris, Texas, regularly "were subjected to unwelcome racial slurs, comments and intimidation, racial graffiti, nooses in the workplace and other symbols of discrimination," the Equal Employment Opportunity Commission reported.
Black workers also were denied promotions and disciplined more harshly than whites, the agency concluded in a three-page letter in late March. Managers at the plant not only were aware of a "hostile environment," they also targeted workers who complained and disciplined white employees who opposed the harassment, the EEOC found.
Those workers took pictures of the racial grafitti, the nooses, and threatening notes to the EEOC. The company denies that its conduct violated Title VII, and at least some of the time, cleaned up the grafitti immediately. It sounds like this case is going to turn not on whether the harassment happened, but whether the company can be liable for it and whether the company retaliated against those who complained. Since the EEOC began its investigation, similar allegations have arisen about other Turner plants in other areas of Texas. It's always sobering to hear just how far we haven't come in two-and-a-half generations.
Wednesday, April 14, 2010
The second, which takes place next Friday, April 23, 2010 from 9am to 5pm in Boalt Hall Room 105, is an all day symposium entitled "Paving the High Road: Labor Standards and Procurement Policy in the Obama Era." Those who would like to attend should register at www.bjell.org. The speakers presenting are:
Christopher Edley, Dean, UC Berkeley, School of Law
George Faraday, Legal Director for Federal Initiatives, Change to Win
Fred Feinstein, Senior Fellow, University of Maryland, School of Public Policy
Tsedeye Gebreselassie, Staff Attorney, National Employment Law Project
Julian Gross, Director, Community Benefits Law Center
Ken Jacobs, Chair, UC Berkeley Labor Center
Scott Kronland, Partner, Altshuler Berzon LLP
Donna Levitt, Director, San Francisco Office of Labor Standards Enforcement
David Madland, Director, American Worker Project, Center for American Progress
Ann O'Leary, Executive Director, Berkeley CHEFS
Phillis Payne, Connerton & Payne, PLLC
Lynn Rhinehart, General Counsel, AFL-CIO
Patricia Shiu, Director, Office of Federal Contract Compliance Programs, Department of Labor
Paul Sonn, Legal Co-Director, National Employment Law Project
The transcripts of both events will be published in the 31:2 issue of BJELL, due for publication in Winter 2010-11, and MCLE credit is available for all attendants at a suggested donation of $20-50 per credit.
HEALTH AND SAFETY AND VULNERABLE WORKERS IN A CHANGING WORLD OF WORKAs an added incentive, friend of the blog Susan Bisom-Rapp (Thomas Jefferson) is giving the keynote for Part 2 of the conference. Her talk is titled "Deregulation, Safe Work, and Undocumented Workers in the New Economy: An Analysis of Novel Programming for America's Most Vulnerable." Great work, Susan, and it looks like a great conference. See the brochure for more info: Download Brochure
The Law Department, and ADAPT - Centro Studi Marco Biagi
Middlesex University University of Modena
are holding an International Conference at the Hendon campus of Middlesex University, London on
Tuesday 8 June 2010
The theme is the significant health and safety issues related to precarious working and vulnerable workers. Presentations will be given by leading researchers in the field with papers presented by academics from Europe, Australia, New Zealand and the USA.
You are invited to register and reserve a (free) place at the conference by email to Denise Arden at D.Arden@mdx.ac.uk Please provide your name, institutional affiliation and full contact details.
For further information please contact either Professor Malcolm Sargeant at M.Sargeant@mdx.ac.uk or Professor Brenda Barrett at B.Barrett@mdx.ac.uk
As Alan Hyde points out in the comments to Paul's post on the Massey Coal Mine disaster, that particular story does not talk about the fact that the mine is non-union. There has been some discussion of that, though, on NPR and in Businessweek, for example.
I found it surprising that there has been relatively little discussion of the Caperton case, as well and tying all of what seem to be the main strands of the cause of this disaster together--the economic dominance of Massey in the region, the political shenanigans, the union busting, and the reflexive contesting of regulators' safety warnings. For some integration of those, I found Patrick S. O'Donnell's post at ReligousLeftLaw.com and the report this morning on NPR about the relatively good salary and benefits thought provoking.
Tuesday, April 13, 2010
Thanks to Beth Thornburg (SMU) on the Civil Procedure Listserv for the heads up on this revealing story from NPR on the worst coal mine disaster in decades:
An NPR News Investigation shows that the Upper Big Branch mine in West Virginia is not the only Massey Energy mine with a litany of safety violations, citations and fines.
Twenty-nine miners died last week in an explosion at the Upper Big Branch mine. Federal mine safety records document repeated safety problems at that mine. Now, NPR's analysis of federal records indicates a similar pattern at nine other Massey mines in Virginia, West Virginia and Kentucky.
NPR reviewed 2009 safety inspection records available from the Mine Safety and Health Administration for all 35 active underground coal mines owned by Massey Energy.
Four Massey mines had injury rates more than twice the national rate last year. The national rate is 4.03 injuries per 200,000 worker hours. Massey's Tiller No. 1 mine in Tazewell, Va., had the company's highest injury rate at 9.78. The other high-injury mines are Slip Ridge Cedar Grove (9.18) in Raleigh, W.Va., M 3 Energy Mining's No. 1 (8.86) in Pike County, Ky., and Solid Energy Mining's Mine No. 1 (8.49), which is also in Pike County.
Together last year, the 10 Massey mines with above-average injury rates received 2,400 safety citations.
Challenging Citations, Delaying Fines
Massey's long list of citations has some wondering whether the federal mine safety inspection system works.
"Part of the strategy by the mine operators [is], 'Well, we're going to contest everything,' " says Bruce Dial, a mine safety consultant who spent 24 years as a federal mine inspector and inspection trainer.
Dial is referring to the citations and fines leveled by federal inspectors. In the past four years, he says, in the wake of the Sago Mine disaster in West Virginia, inspections, citations and fines increased. Challenging the citations delays the payment of fines.
"It takes so long to get [citations] through the review commissions, they don't end up paying fines until it's three, four, five years down the road," he says.
In fact, 16,000 citation appeals are pending right now, and they're worth millions in fines. Massey Energy alone, according to NPR's analysis, has had more than $7.6 million in fines. That's over five years at those 10 high-injury mines. The company has paid just $2.3 million of that amount so far.
Massey did not respond to NPR's request for comment but said in a statement last week that its rate of violations (per day of inspection) at its Upper Big Branch mine is consistent with the national average.
That's not true, says Ellen Smith, owner of Mine Safety and Health News.
And in case you were not heart sick about this: "as recovery crews prepared Monday to remove the last of the bodies from the Upper Big Branch mine, S&P Equity Research issued a rosy financial review of the mine disaster's impact on Massey Energy's bottom line."
Wondering why civil procedure people are interested (except that they are tremendous group of good heart people)? Beth explains:
For those interested in the Caperton case (campaign contribution/judicial recusal), Don Blankenship, the man responsible for the huge campaign contribution to the WV Supreme Court judicial candidate, is the owner of Massey Energy – the company that had a big case coming before the WV court as the contributions were made.
There's been a recent strike in Copenhagen at the Carlsberg brewery. Apparently, Carlsberg reduced the number of free beers available to workers during the day, and the workers are none too pleased. (That's right, the number of free beers during the day, while they're working.) The strike has been effective, and is threatening supplies to buyers, so the workers may succeed.
I think we've just found the answer to the declining U.S. union density rate: Want free beer at work? Join a union!
Hat Tip: Allison Malone
OFCCP's draft strategic plan for FY 2010-2016 is up on the Department of Labor's website. Apparently, it has prompted fears from some that it shows a renewed push for more disparate impact claims. I'm not sure if I saw the same intention from the plan (although it sounds like there may be other statements on the topic), but I guess we'll see.
Hat Tip: Andrew Gould
A new blog to add to the list of labor & employment siteshas just come online: the Greenberg Traurig LE Blog. Among other cases, the firm represents New Process Steel in the pending Supreme Court case and is home to frequent commenter on this blog, Justin Keith, who will be a contributor to the new blog. Based on the posts thus far, it looks like they'll be covering a wide range of L&E topics targeting the employer audience in particular.
Welcome to the neighborhood.
- National Minimum Wage to rise in line with average earnings by end of the next Parliament;
- Up to 70,000 advanced apprenticeships a year and Skills Accounts for workers to upgrade their skills;
- Paid paternity leave to double to four weeks;
- Harder English tests to be taken by all migrants before they arrive to work in the UK and in the public sector, all employees who have contact with the public to have an ‘appropriate’ level of English;
- The link between staying for a set period and being able to settle or gain citizenship will be broken and replaced by a points system;
- Job or training places for young people out of work for six months and the cutting of benefits at 10 months if they refuse a place;
- Guarantee for work for anyone unemployed for more than two years;
- A right to request flexible working for older workers, ending default retirement age at 65;
- The link between state pensions and earnings re-established from 2010.
Michael Z. Green (Texas Wesleyan) has just posted in SSRN his extremely timely article (forthcoming Connecticut L. Rev.) Unpaid Furloughs and Four-Day Work Weeks: Employer Sympathy or a Call for Collective Employee Action?. Here's the abstract:
In these tough economic times, employers have responded by pursuing four-day work weeks and other mechanisms that change the components of the standard five-day work week. Although four-day work weeks provide some savings in the form of reduced operating and energy costs and have received recent notice for also being family-friendly and environmental-friendly, current dismal economic prospects have inspired employers to pursue other work week changes to achieve further savings. Furloughs, also referred to as unpaid days off, represent a form of a reduced work week as employees do not work during their furloughed time and receive no income for those hours. Furloughs have become more prevalent as employers have offered this option to employees as a major cost-cutting action and as a unique response to the current recessionary times. In some situations, employers have mandated these furloughs without consulting employees. In other situations, furloughs have been presented as a sympathetic action by an employer seeking to make things better for employees by not pursuing layoffs. In the midst of a nearly unprecedented jobs crisis, employees have few options when responding to these wage-cutting initiatives. Through collective actions, employees and their unions can navigate these difficult economic times. As an added benefit, these actions can focus on the one option that would significantly aid workers during these tough times: paid leave benefits. Either through legislative action or union-negotiated agreements, employees must ban together and respond collectively to furlough initiatives by exploring all other cost-cutting measures and by seizing upon this time to focus on paid leave benefits. This paper explores the increasing use of unpaid furloughs instead of layoffs and suggests how employees should use their collective might to respond to these novel cost-cutting measures.
Folks might want to know that Judge Easterbrook's sexist dog has been joined in the pantheon of problematic pets by a racist dog (without condoing the self-help employed in this situation). Hat tip to SHLS student Shmuel Tsinman.
Monday, April 12, 2010
According to the Washington Post, Andy Stern is preparing to resign as head of the SEIU. Given Stern's high-profile and aggressive leadership tactics, this will obviously be a significant change. The big question is when. The Post quotes one source as saying in 2012, while another suggests that it's "imminent." Also not clear is the reason(s) for leaving and his plans afterward. Here's the relevant part of the story:
Diane Sosne, the head of an SEIU chapter in Seattle, e-mailed colleagues at midday Monday to alert them to Stern's imminent departure.
"Last night I received confirmation that Andy Stern is resigning as President of SEIU," she wrote. "He has not yet made a public announcement; we will share the details as we become aware of them." Sosne's e-mail was first reported by Politico late Monday; The Washington Post also obtained a copy of it.
Asked to comment Monday night on Sosne's remarks, SEIU spokeswoman Michelle Ringuette instead released a statement that Stern would address "increasing speculation regarding [his] intention to step down as president ..... in 2012" later this week, when the union's executive committee meets in Washington.
[A] Democratic official confirmed that Stern intends to step down from his presidency. The official spoke on condition of anonymity to avoid irritating union officials.