June 11, 2010
Becker Rejects Majority of Recusal Petitions & NLRB is Going Mobile
New NLRB Member Craig Becker has officially responded to 13 requests to recuse himself--denying 12 of them and recusing himself in one (Dana Corp., which he helped write a position brief for). He thoroughly explained his position in Pomona Valley Hospital. His basic position was his pledge to recuse himself for two years in cases in which the interational SEIU was a party, but not where only SEIU locals were involved (unless an SEIU attorney is involved).Also, as a side note, the NLRB is going mobile, with a new smartphone service (called "NLRB Mobile") that delivers cases and other documents. Maybe I can now get my Dean to pay for a new iPhone . . . .
Hat Tip: Dennis Walsh
An Independent Labor Movement in China?
Not soon after we noted an increased amount of labor news from China, more news is coming out that some of the labor unrest actually involved independent labor representation. It appears difficult to see exactly what's going on, but it seems that many workers are using--for lack of a better term--"shadow unions" as an independent source of representation that is paralleling the official, but often useless, national union. The Chinese government is being more tolerant than one might imagine, but only to up to a point. It will be interesting to see whether this is a mere blip or the start of something new. A telling fact is that many of the plants involved are in areas where there is a severe labor shortage. Another reminder that you can't ignore labor supply and demand when discussing labor activity (although some certainly try).
Hat Tip: Dennis Walsh
June 10, 2010
New ABF Study: Only 6% of Plaintiffs Get Discrimination Claims to Trial, Settlements Modest
The ABA Journal reports today about a press release from the American Bar Foundation:
When people think of employment discrimination suits, big-name class action cases like the recent record-breaking filing against Wal-Mart tend to come to mind.
But individual suits that rarely make it to trial and are likely to win a modest settlement, if any, accounted for the vast majority of employment discrimination cases in the federal courts between 1987 and 2003, explains a press release about an American Bar Foundation study, Individual Justice or Collective Legal Mobilization? Employment Discrimination in the Post Civil Rights United States.
Published in the June issue of the Journal of Empirical Legal Studies, the study finds that only 6 percent of the plaintiffs in these cases make it to trial. At that point, they have a one-in-three chance of winning.
For those who have practiced or studies this area of the law over the years, perhaps these findings are not too surprising. To me, they suggest that the pendulum has swung too far in favor of employers in employment discrimination cases.
Bales Receives Special Fulbright Grant to Study and Teach in Malaysia
Kudos to co-blogger Rick Bales who was just received a Fulbright Specialists grant. This grant will send him to Kuala Lumpur, Malaysia, for three weeks in July of this year. He will, among other things, be training labor/employment law judges on the mediation of labor/employment law disputes.
While in Malaysia, Rick will also conduct seminars on ADR in the Workplace for human resource managers/practitioners/trainers, lawyers, academics & students. He will also conduct a seminar on ADR at the Industrial Court for the President and Chairpersons of the Industrial Court of Malaysia. Dr. Vanitha Karean at Monash University will assist in sharing the workload. Finally, Rick will work with Dr. Karean on ADR & At-Will Employment – American & Malaysian Comparisons, with a view to joint publication; study the employment dispute resolution processes of Malaysia, which is unique in that it is a Muslim country with an English-style federal court system.
Rick is acting as a pioneer in this endeavor and I can think of no better person to foster these relations with Malaysia.
June 9, 2010
U. Saskatchewan Conference on Freedom of Association
Sara Slinn (Osgoode Hall) sends this note about a conference at U. Saskatchewan regarding the Canadian Supreme Court's recent expansion of labour rights under the Freedom of Association:
A rapidly developing area of labour law in Canada is that of the Charter's protection of the Freedom of Association as it relates to collective bargaining and, in particular, worker rights and responsibilities of governments and employers. In February 2010 Roy J. Adams, Ariel F. Sallows Chair of Human Rights for 2009-2010, U. of Saskatchewan College of Law, held a conference addressing the implications of recent court decisions in this area. The presentations of the 21 participating speakers have now been posted online to encourage ongoing dialogue on this issue.
Regional Director Dismisses UAW Petition to Organize NYU Graduate Assistants
In a decision that almost certainly presages the Obama NLRB's first reversal of a Bush II Board decision, a NLRB Regional Director has, as expected, dismissed a UAW petition to organize 1800 graduate and research assistants at NYU. The dismissal was entirely expected, and is consistent with the 2004 Bush II Board decision involving graduate students at Brown University. The Brown decision had overturned the Clinton Board's 2000 decision in NYU that teaching and graduate assistants are statutory employees. Here's the scorecard:
- 2000 NYU Clinton Board teaching/grad assistants are statutory employees.
- 2004 Brown Bush II Board teaching/grad assistants are not statutory employees.
- 2010? NYU Obama Board expected to hold that t/g assistants are statutory employees.
As soon as the flip-flops start, expect to hear howls of righteous indignation by Republicans lauding the value of stare decisis, with rejoinders by Democrats pointing out that the NLRB is structurally designed to reflect the politics of the sitting President. Of course, just a few years ago, it was the Democrats howling about stare decisis and the Republicans rejoining about political responsiveness. It happens every time the Presidency switches parties.
June 7, 2010
Commission on Civil Rights to Hold Hearing on Age Discrimination
DATE AND TIME: Friday, June 11, 2010; 9:30 a.m. EDT
PLACE: 624 9th St., N.W.
Washington, DC 20425
The current economic crisis has forced many companies to cut costs and downsize by, among other things, laying off workers, cutting salaries and exploring early retirement options with their employees. In a nation where "baby boomers" born in the late 1940s and early 1950s are now at or near retirement age, older workers may experience disproportionately greater effects of company downsizing, whether real or merely perceived. In addition, many retired senior citizens living on pensions or investments may face marked reductions in the income of their assets and seek reentry into the work force. The Commission's briefing will address the impact of the current economic crisis on workers over 40 who are covered by the Age Discrimination in Employment Act (ADEA). The Commission will hear testimony from witnesses analyzing statistics from the Bureau of Labor Statistics and other sources, on whether older workers are less employed than in earlier years, the duration of unemployment, and whether age discrimination lawsuits have increased during the economic downturn. Witnesses will also consider the effectiveness of the Equal Employment Opportunity Commission in enforcing the law, and the effect of recent Supreme Court decisions governing ADEA on age discrimination claims.
Witnesses appearing at the briefing will include:
Walt Connolly, senior partner, Connolly Rodgers & Scharman
Michael Harper, Professor, Boston University School of Law
Dianna Johnston, Assistant Legal Counsel, EEOC
Laurie McCann, Senior Attorney, AARP Foundation Litigation
Elizabeth Milito, Senior Executive Counsel, National Federation of Independent Business
Thomas Nardone, Assistant Commissioner for Current Employment Analysis, the Bureau of Labor Statistics
Cathy Ventrell-Monsees, President of Workplace Fairness
A Commission business meeting will follow the briefing.
Persons with a disability requiring special services should contact Pamela Dunston at least seven days prior to the meeting at 202-376-8105.
The U.S. Commission on Civil Rights is an independent, bipartisan agency charged with monitoring federal civil rights enforcement. Members include Chairman Gerald A. Reynolds, Vice Chair Abigail Thernstrom, Commissioners Todd Gaziano, Gail Heriot, Peter N. Kirsanow, Arlan D. Melendez, Ashley L. Taylor, Jr., and Michael Yaki. Martin Dannenfelser is the Staff Director. Commission meetings are open to the general public. The Commission's website is http://www.usccr.gov.
This should be a very interesting hearing, and I hope that the witness' remarks will be available. If I can find them, I'll provide an update with links.
Acquittal in Agriprocessors Child Labor Case
A jury has just acquitted a manager of Agriprocessors' Potsville plant on state child labor violations (he was convicted earlier on federal fraud charges). As best as I can tell, it looks like the jury found insufficient evidence that the manager actually knew about and intended to commit the child labor violations.Perhaps more telling is that, even if found guilty, the violations would have only been misdemeanors.
An NLRB Dissent
You read that right--an actual dissent in an NLRB case. The first in over two years thanks to the Board now having four members. This case, St. Barnabus Hospital, is just a denial of a request for a review, but it's nice to see a dissent in any type of case. In fact, the issue in St. Barnabus is an interesting one, as the case dealt with the "house staff" of a hospital and the hospital's argument that the NLRB's Brown University case (concluding that university research and teaching assistants were not employees) should be used to essentially overturn the Board's Boston Medical decision (concluding that medical interns were employees). Chairwoman Liebman and Member Becker concluded that Brown does not require a reconsideration of Boston Medical, while Member Shaumber concluded that Brown did apply.
Just the beginning of many more such cases.
Hat Tip: Justin Keith
Labor News from China
There has been a spate of interesting labor-related developments recently coming out of China. First, there were reports of several suicides at the Foxconn plant, which makes electronics for major American computer companies such as Apple. What I find interesting about the Foxconn story is that it went viral (at least as much as a L&E story can) despite that fact that the suicide rate was under China's national average. No matter the reason, the story has further focused attention on work conditions in China and directly resulted in raises at the Foxconn plant. Not surprisingly, however, there's been pushback--most notably on stories focusing on the fact that better working conditions might raise prices for consumer products. But, to at least the linked story's credit, the reporters note also the benefits of increasing wages--something even the Chinese government is beginning to stress instead of merely trying to maximize imports.
And one more example of the tension between labor costs and labor standards in China is a recent strike at a Honda plant. This was significant in several respects. First, the government let the strike happen and allowed media coverage (although they eventually banned the media). Second, the strike was at least partially successful, as Honda agreed to a significant wage increase, which most workers accepted.
Given the importance of China in the global labor market, these developments could be signs of significant changes over the next several years. Or not.
Hat Tip: Dennis Walsh
Recently Published Scholarship
- Ilana Gelfman, Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination "Because of ... [Perceived] Sex, 34 NYU Rev. L. & Social Change, 55 (2010).
- Teri Morris, States Carry the Weight of Employment Discrimination Protection: Resolving the Growing Problem of Weight Bias in the Workplace, 32 W. New England L. Rev. 173 (2010).
New Bank of America Class Action for FLSA Overtime
Reuters reports that a national class-action suit has been filed in Kansas City against Bank of America. The suit, on behalf of 180,000 workers at the bank's retail branches and call centers, alleges that employees were not paid for overtime or for working through scheduled breaks.