June 25, 2010
Workers' Comp Issues in the BP Oil Spill
Keith Lee sends us links to two blog posts on focusing on various issues regarding workers compensation coverage of workers involved in the BP oil spill clean-up. Both are on Fish & Nelson's Alabama Workers' Comp Blog. The articles are:
- Oil Spill Likely to Lead to Future Workers' Compensation Claims, and
- Going In-Depth with the Laws Governing Injured Oil Spill Workers Claims.
Wal-Mart Works with Union
It looks like for the first time in its history in North America, Wal-Mart has reached an agreement with a union. Jorge Ramirez, Sec’y-Treasurer and President-elect (and I am proud to say a former student of mine) of the Chicago Federation of Labor played a major role in this, I am sure. Jorge came to the Chicago Fed from the UFCW. Here’s the story as reported in Crain’s Chicago Business.
Recently Published Scholarship: 4-Day Work Week
Connecticut Law Review
Volume 42, Number 4 (2010)
The Four-Day Work Week: Views from the Ground
- Rex L. Facer II & Lori L. Wadsworth, Four-Day Work Weeks: Current Research and Practice, p. 1031.
- Riva Poor, How and Why Flexible Work Weeks Came About, p. 1047.
- Robert C. Bird, The Four-Day Work Week: Old Lessons, New Questions, p. 1059.
Rational Choice, Flexibility, and Accommodation in the Work Place
- Rachel Arnow-Richman, Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance, p. 1081.
Reduced/Compressed Work Weeks: Who Wins? Who Loses?
- Shirley Lung, The Four-Day Work Week: But What About Ms. Coke, Ms. Upton, and Ms. Blankenship? p. 1119.
- Michael Z. Green, Unpaid Furloughs and Four-Day Work Weeks: Employer Sympathy or Call for Collective Employee Action? p. 1139.
- Lonnie Golden, A Purpose for Every Time? The Timing and Length of the Work Week and the Implications for Worker Well-Being, p. 1181
Redefining Work: Possibilities and Perils
- Vicki Schultz, Feminism and Workplace Flexibility, p. 1203.
- Michelle A. Travis, What a Difference a Day Makes, or Does It? Work/Family Balance and the Four-Day Work Week, p. 1223.
- Katharine B. Silbaugh, Sprawl, Family Rhythms, and the Four-Day Work Week, p. 1267
- Emily Grabham, Dilemmas of Value in Post-Industrial Economies: Retrieving Clock Time Through the Four-Day Work Week? p. 1285.
Individual articles from the symposium may be downloaded here (thanks, Hank, for the link!).
June 24, 2010
Shout Out to the New FMLA Insights Blog
Jeff Nowak, a partner at Franczek Radelet, P.C., just started the FMLA Insights blog, which will highlight significant FMLA cases and developments and explore common FMLA questions and scenarios.
I believe the blog will be a valuable resource for any labor and employment practitioner.Among their first posts is the news out of the DOL a couple of days ago regarding the interpretation of in loco parentis.
Check it out!
Supreme Court's Granite Rock Decision
The Supreme Court issues its decision today in Granite Rock v. Teamsters. Justice Thomas wrote the decision, with Stevens and Sotamayor concurring in part and dissenting in part. Rick may have more input later, but for now, a summary from SCOTUSblog:
The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question. Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed. The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not. The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.
Eighth Circuit Reaffirms Shifting Reasons Are Proof of Pretext
In a published opinion released earlier this week, the Eighth Circuit has confirmed that a plaintiff can prove pretext by showing that an employer provided reasons for its action that shifted significantly over time. In Jones v. National American University, the plaintiff alleged that she was not promoted to admissions director for one of the university's campus because of her age. A jury agreed.
Jones was in her mid-fifties when she applied for the promotion, had been working in the admissions office for six years, and was one of three finalists for the position. The other two finalists were offered the job and both declined. Rather than offer her the job, however, the university began an expanded search, but had Jones act as the interim director. During that expanded search, Jones had a conversation with one of the decisionmakers about an applicant who was in his mid-fifties. The decisionmaker said that he wasn't sure that "we want a grandpa working with our high school students." Ultimately a 34-year old former hospital administrator was given the position, and Jones resigned in protest. When he accepted her resignation, the same decisionmaker who had made the previous comment told her that she would have been a better choice for the short term but the woman given the position would be better for the long term.
Jones filed a charge with the EEOC, and the university told that agency that Jones wasn't promoted because of poor performance. The EEOC found no cause and issued Jones a right to sue letter. Jones sued, and the university changed its tactics. At trial it contended that Jones was not promoted because she lacked management experience.
This was where things began to unravel for the university. The jury was allowed to infer that this reason was a pretext because it differed substantially from the reason given to the EEOC. Additionally, there was no evidence submitted to substantiate the prior reason--everybody testified that Jones' performance was good. Moreover, none of the job postings had listed management experience as a requirement. Finally, Jones presented evidence that she was more qualified than the person who received the job and at least one of the prior finalists offered the job. The two comments that could be interpreted to show that age was on the mind of at least one of the decisionmakers didn't hurt.
This case provides several important points. First, it's interesting that the EEOC found no probable cause to believe that discrimination occurred. It makes me wonder how its file differed from the evidence presented at trial. Second, the case reiterates the important principle that if an employee can cast doubt on the reason given by the employer, that should be proof sufficient for a jury to find that the plaintiff's protected class was the real reason. And finally, the case demonstrates, that while the second point may technically be true, it helps to be able to point to additional things that highlight both the plaintiff's protected class (the comments) and the lack of overall rationality of the employer's actions (choosing an applicant without a preferred qualification that the plaintiff had).
June 23, 2010
Pot Workers Unite!
I've been slow to post this news [you may insert joke here], but about 100 medical marijuana workers around Oakland have unionized. A UFCW local organized them and, based on other reports, it appears that the representation occurred through a card-check agreement with the employers, who may have been motivated in part to make their participation in the marijuana trade appear more mainstream. Most of the employees appear to work in a dispensary or gift shop, but others seem to be involved in actually growing the pot, which leads to questions about the agricultural exception under the NLRA. But that, as of yet, hasn't become an issue.
Hat Tip: Dennis Walsh
On Giving Workplace Feedback
I'm cross-posting, with permission, Mike Maslanka's post What millennials can teach about microfeedback from his blog Work Matters:
Do you have a "millennial" in your work life? They are the cohort born between 1977 and 1997, the ones 33 years and younger. An article in the May issue of the Harvard Business Review, "Mentoring Millennials" by Jeanne C. Meister and Karie Willyerd, is full of interesting advice on how to do so. Here is one: evaluations that are daily and done Twitter-like in 140 characters. According to the authors’ research, this cohort wants constant feedback and information on how their career is or is not progressing — no formalized, Kabuki-like annual review for them. When advice is brief and timely, it is useful. In practice, this is an on-demand assessment system, with the employee asking questions of the supervisors, such as: "Was my presentation relevant?" or "What can I do to be more successful at the company?" The answers from bosses are limited to 140 characters, so the bosses carefully must think through their responses for them to be useful. Since employees usually pose the questions in close proximity to an event (such as a presentation), the answers are timely, not dusty. It’s called microfeedback.
True enough, but I think all of us -- Millenial or not -- benefit from frequent, targeted, formative feedback. Cf. the single-end-of-semester-exam "feedback" we give to students in first-year law school courses.
The Increase of the Workplace Chaplain or Another Reason for Federal Anti-Captive Audience Laws
Thanks to friend of the blog, Suja Thomas (Illinois), for bringing to my attention this article from the Wall Street Journal on the increased use of workplace chaplains:
A growing number of companies are offering the services of chaplains in the workplace. Managers say many employees who wouldn't think of calling a therapist or an employee-assistance program will willingly turn to a chaplain. Executives at Tyson Foods Inc., which employs 120 chaplains serving a work force of 117,000, say they believe the service reduces turnover. Other companies contract with chaplain-placement services to handle workplace disruptions that managers can't.
Following the military-chaplain model, these roving spiritual advisers typically visit offices or factories weekly, greeting employees, hanging out in the break room, handing out business cards and meeting one-on-one with workers. But they're also on-call 24/7, so chaplains rush to hospitals, restaurants or homes on request, providing comfort and support free of charge to employees . . . .
The chaplains say they don't proselytize or push any particular beliefs. Instead, they spend most of their time encouraging and calming people, offering emotional support or providing referrals to social service agencies or employee-assistance programs. If employees want to talk about religion, the chaplains do so, but only if asked . . . . Voluntary expression of one's religious beliefs at work is permissible under law, but employers can't legally pressure employees to take part in prayer or devotional services.
As I have written recently, I am concerned by the increased presence of religion in the private-sector workplace, and not because I am hostile to religion. Indeed, I am worried about the workplace corrupting religious observance. As I wrote recently in Yale Law Journal Online Essay:
Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination.
To eliminate this danger while remaining consistent with the First Amendment framework for election law post-Citizens United, this Essay urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act (S.B. 519), which became effective January 1, 2010. S.B. 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Enacting a federal law like the Oregon bill, which would protect employees from being terminated, disciplined, or otherwise disadvantaged for choosing not to be subjected to indoctrination meetings, would effectively address this problem and would constitute permissible employment standards legislation . . . .
In addition to political speeches, more companies are hiring ministers to serve their workers. Evangelical Christian organizations are increasingly offering ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are becoming a larger part of the American workplace. Although voluntary religious participation in the private workplace may not be objectionable, power disparities in the employment relationship suggest that some of this employee religious participation may not be a matter of free choice . . . .
The need for this type of legislative response is based on the longstanding recognition that employers’ speech carries a different weight than that of any other participant in political debates, and that the law must be particularly careful to guard employee-voters against the undue influence of their employers . . . .
Religion in the private workplace on a purely voluntary basis is fine, but there must be safeguards in place which prevent employees from feeling that they have no choice in the matter. Here, I also think of the indirect subtle coercive pressures to conform that the Supreme Court discussed in its decisions in Lee v. Weisman and Santa Fe v. Doe. My federal legislative fix would provide the necessary and limited balm.
Rand Report on the Dynamics of Immigration and Wages
Silvia Helena Barcellos has posted her new working paper for RAND on SSRN, The Dynamics of Immigration and Wages. From the abstract:
June 22, 2010
DOL Interpretation Letter Expands FMLA Rights to Non-Traditional Families
In another move to provide protections to LGBT employees, the Obama Labor Department has clarified the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act to give family leave rights to people who assume the role of caring for a child regardless of the legal or biological relationship, according to an interpretation letter (No. 2010-3) issued by the Wage and Hour Division June 22.
In that letter, Wage and Hour Division Deputy Administrator Nancy J. Leppink wrote: “Either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child . . . . In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.”
Significantly, the letter states that, “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA . . . .A simple statement asserting that the requisite family relationship exists is all that is needed."
And even more specifically with regard to same sex relationships, the interpretation letter states: "[A]n employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child."
Needless to say, these employee protections have been long sought by the LGBT community and the letter is another example of the Obama administration following through on its LGBT agenda.
Law School Grade Inflation as a Response to a Dire Job Market
Thanks to friend of the blog, Joe Seiner (South Carolina) for bringing to my attention this article yesterday in the New York Times which chronicles the increasing trend of law schools to inflate their grades to try to make their graduates more competitive on the hiring market.
One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average.
But it’s not because they are all working harder.
The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.
In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient. These include law schools like New York University and Georgetown, as well as Golden Gate University and Tulane University, which just announced the change this month. Some recruiters at law firms keep track of these changes and consider them when interviewing, and some do not.
Law schools seem to view higher grades as one way to rescue their students from the tough economic climate — and perhaps more to the point, to protect their own reputations and rankings. Once able to practically guarantee gainful employment to thousands of students every year, the schools are now fielding complaints from more and more unemployed graduates, frequently drowning in student debt.
FWIW, I think this is a mistaken approach. In a competitive market, legal employer want to know that law students have been subject to a rigorous curriculum and assessment that indicates their likely success as professionals. My sense is that the more sophisticated employees will see right through this ploy and focus on class rank or other indications of merits (like law review membership or serving on a moot court board.
In short, I believe law schools should focus more on what make their law students attractive hires (perhaps more skills-based, experiential learning opportunities) and less on numbers that without comparison really don't tell much about the student's academic performance.
Walsh Confirmed as Chairman of Special Appeals Panel
Although it's not yet posted on the Senate's website (none of today's confirmations are), we've heard that Dennis Walsh--whose full-time gig is as Deputy General Counsel at the FLRA and is a frequent contributor to this blog--was confirmed by unanimous voice vote as Chairman of the Special Panel of Appeals. This is the panel that resolves splits of opinion between the MSPB and EEOC.
Congratulations to Dennis!
Call for Papers from the Journal of Intercollegiate Sport for Its Scholarly Colloquium
The fourth annual Scholarly Colloquium on Intercollegiate Athletics will be held on January 12-13, 2011 in conjunction with the NCAA Annual Convention in San Antonio, Texas. The theme for this year’s colloquium is “Social Justice in Intercollegiate Sport: A Critical Examination of Racialized, Gendered, and Disabled Bodies.” The conference will feature keynote speakers, two formal reactions to each keynote, and sessions of refereed papers.
Here is the official call for the refereed papers. To be considered for the refereed paper sessions, authors most submit a 500-600 word abstract of the proposed paper via e-mail to David Wiggins, firstname.lastname@example.org, and copy the abstract submission to Ketra Armstrong, email@example.com. The deadline for proposal submission is October 1, 2010. Individuals will be notified of the results of the review process in early November 2010.
Hogshead-Makar Appointed Senior Director of Advocacy of the Women Sports Foundation
A little late with this news, but I wanted to congratulate fellow Section 3 alum of Georgetown Law Class of 1997, Nancy Hogshead-Makar (Florida Coastal), who recently accepted a position as Senior Director of Advocacy at the Women's Sports Foundation (WSF).
From the Press Statement:
The WSF was founded by Billie Jean King in 1974 as a driving force to attract girls and women to sport while promoting better health and education.
Hogshead-Makar has a 25-year history with the WSF. She began as an intern after the 1984 Olympics, where as a swimmer she won three gold and one silver medal. She became a member of the Board of Directors in 1985, becoming Vice-President from 1990-92, and served as the organization’s third President from 1992-94. She has served as the organization’s Legal Advisor since 2003.
Hogshead-Makar’s expertise spans an array of gender equity issues, including sports participation, sexual harassment, employment, pregnancy and legal enforcement. Her book, co-authored with Andrew Zimbalist, Equal Play, Title IX and Social Change, has received critical acclaim since its release in November 2007 by Temple University Press. She was the lead author of the NCAA’s Pregnant and Parenting Student-Athletes; Resources and Model Policies, released November 2008.
Nancy will continue to hold tenure at Florida Coastal, but teaching part-time, one class per semester.
I am proud as always of your amazing accomplishments, Nancy!
Senate Confirms Hayes & Pearce, But Not Becker
This morning the U.S. Senate confirmed the nominations of Republican Brian Hayes and Democrat Mark Pearce to be members of the National Labor Relations Board. The Senate took no action with respect to the pending nomination of Craig Becker.
This means that the current composition of the board is:
- Chair Liebman (confirmed through August 2011).
- Member Schaumber (confirmed through August 2010).
- Member Pearce (confirmed through December 2013).
- Member Hayes (confirmed through December 2012).
- Member Becker (serving a recess appointment that expires at the end of 2011).
Hat tip: Kevin Kraham of Littler.
Basas on The Curse/Crusade of Lawyers with Disabilities
Carrie Basas (North Carolina) has an interesting and irreverent commentary on the Disability Blog on the coming 20th anniversary of the passage of the Americans with Disabilities Act (ADA) and what it means for lawyers with disabilities.
Here's a taste:
I sometimes joke that I was born into the legal profession. My parents weren’t attorneys; they didn’t go to college. But being born with my disability - Larsen’s Syndrome - meant that I quickly learned self-advocacy skills, and those skills, and observations about some of the injustices in education and the workplace, drove me to law school.
Naively, when I was accepted to Harvard Law, I thought that the discrimination that I had faced growing up - having to fight to be mainstreamed from special education to my home school, hearing parents snicker when I would win academic awards and confronting constant staring - would disappear. I had arrived - right? Who in the world would doubt that a Harvard Law graduate was capable, smart, special-in-a-good-way? Employers. Some of my classmates. Even some of my professors . . . .
I didn’t find a “Big Law” job and I didn’t ever feel like I fit in at law school. As a poor student trying to pay off big loans, I was told by firms that I belonged in disability law. I never got the option, really, to try other fields and be paid for my work in them.
When we speak about the unemployment of people with disabilities, let’s remember that the issue goes from the lowest paid jobs all the way to the most highly compensated. And underemployment - the underutilization of the incredible talents of my sisters and brothers with disabilities - is just as troubling as being jobless. We all deserve meaningful work and a choice in career fields.
Read the whole things and then ask yourselves have we really come that far in the dealing with disability in the workplace, even among those who are supposed to "know better?"
FMLA to Cover Leave for Gay Partners of Federal Employees
Update: This piece from the AP suggests that Obama's actions will go beyond federal employees: "His administration planned to announce Wednesday [tomorrow] that the Labor Department would order businesses to extend unpaid leave for gay workers to care for newborns or loved ones." stay tuned for Wednesday's announcement. PS
Michael Shear writes for today's Washington Post that:
On Wednesday, the Labor Department is expected to announce that federal officials have rethought the Family and Medical Leave Act, concluding that under the law, a gay federal employee may take leave to care for a child with a gay partner.
This news is part of a story about how the Obama Amdinistration is using executive orders and administrative reinterpretations to expand federal rights and benefits for gays and lesbians.
Hat tip: Above the Law.
June 21, 2010
Supreme Court: Arbitrator, Not Court, Decides Whether Arbitration Agreement is Unconsionable
The Supreme Court released today Rent-A-Center West v. Jackson, in which the Court held, 5-4, that if an arbitration agreement provides that an arbitrator will decide all issues pertaining to enforceability, an arbitrator -- not a court -- must decide issues of unconscionability.
The case arose when Antonio Jackson filed an employment discrimination suit against his employer, Rent-A-Center West. RACW moved to compel arbitration. Jackson opposed it, arguing the arbitration agreement was unconscionable under Nevada law. He cited Section 2 of the FAA which provides that arbitration agreements are enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." Jackson argued that this provision gives courts the authority to strike arbitration agreements on general-contract-doctrine grounds such as unconscionability.
The Court (in an opinion written by Scalia), however, disagreed. The Court held the issue was governed by the separability doctrine of Prima Paint: an arbitration agreement is assailable only if the arbitration agreement itself -- not the overall agreement of which the arbitration is a part -- is assailable on state-contract law grounds. So far, so good for Jackson -- until today, this separability doctrine has been applied only when an arbitration agreement was part of a broader ("container") agreement that was not related to arbitration -- e.g., an arbitration provision in a consulting-services contract or in a larger employment contract. Jackson's unconscionability argument was directed squarely at his arbitration agreement.
Today, however, the Court extended Prima Paint to hold that the arbitration agreement itself can be the container contract, and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement. Jackson's unconscionability arguments, the Court held, were directed at the arbitration agreement generally, and therefore could not be grounds for voiding the arbitration agreement as a whole.
The dissent (written by Stevens) made two arguments. I agree with both.
First, the separability doctrine of Prima Paint is stupid. It favors arbitration far beyond what the text of the FAA Section 2 would allow, and farther yet beyond what Congress could possibly have intended when it drafted the statute. Moreover, as Steve Ware has pointed out, the separability doctrine perverts contract law by implying a consent to arbitration (and now, to particular clauses in arbitration agreements) to which at least one of the parties is claiming it never consented. See, e.g., Amsouth Bank v. Bowens, 351 F.Supp.2d 571 (D. Miss. 2005) (ordering arbitration notwithstanding claim of bank customers that their signatures on bank documents containing arbitration provisions had been forged; argument of forgery went to validity of contract as a whole -- not to the arbitration provision specifically -- and therefore was not a ground for refusing to enforce the arbitration provision). For extensive discussions on why the separability doctrine is bad law, see my article here, Richard Reuben's article at 56 SMU L. Rev. 819, and Pierre Bergeron's article at 93 Ky. L.J. 423.
Second, as discussed above, the Supreme Court has extended Prima Paint much farther than that case itself can bear. The Jackson dissent characterized the majority as creating an infinite series of Russian nesting dolls: "Courts may now pluck from a potentially invalid arbitration agreement even narrower provisions that refer particular arbitrability disputes to an arbitrator."
Recently Published Scholarship
- Craig Nadeau, Respecting Congress's Express Intent: Correcting the Split Allowing Unions an Implied Right of Action Under LMRDA Section 501, 59 Catholic U. L. Rev. 821 (2010).
- Jeanne Hayes, Female Fertility in the Workplace: Understanding the Scope of the Pregnancy Discrimination Act, 42 Connecticut L. Rev. 1299 (2010).