July 2, 2010
June Unemployment Data
The Department of Labor released its June unemployment data today. As has been the case lately, the numbers are still pretty week. There were 83,000 private-sector jobs added last month--well below what's necessary to get employment back to where it should be. Adding to the sour mood is that because of the loss of many temporary Census jobs, the overall number of jobs declined. Yet, the unemployment rate also went down to 9.5% from 9.7% in May. This was largely the result of fewer people looking for jobs. Also, the median time on unemployment went up--a statistic that doesn't seem to be affecting the jobs bill's chances in Congress right now.
There are some sliver of good news, however. The increase in private-sector jobs is actually double of May's figures (and a lot better than the massive losses earlier in the year). Whether that's a sign of more to come is anybody's guess.
July 1, 2010
The NLRB's Plan in the Wake of New Process
The NLRB today announced its plan to handle some of the hundreds of two-member decisions that the Supreme Court recently invalidated in the New Process case. More precisely, the Board is addressing the cases currently pending in court--not the cases already decided in court, cases in which the losing party complied with the NLRB order, or cases that may be brought to court but haven't yet. As expected, the Board will rehear these pending cases with a three-member panel that will include Chairwoman Liebman and Member Schaumber, who were on the original two-member panel. This makes sense, as it means that only one member will have to start from scratch on these cases. Given that most of the cases are relatively straightforward and that the Board now has three new members to share the workload, I expect most of them to be reissued in a few months. The relevant portion of the Board's announcement:
In response to numerous inquiries, the National Labor Relations Board today outlined its plans for handling returned cases following the Supreme Court’s recent decision in New Process Steel v. NLRB that the Board was not authorized to decide cases when three of its five seats were vacant.
During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members.
At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.
Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.
It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.
Hat Tip: Dennis Walsh
I don't think I've ever handled a case in which, at one point or another, and often in courtsubmissions, my client wasn't labeled a "disgruntled employee." Since the context invariably meant that my client was suing her present or former employer,it was hard to argue that he or she was happy. But, still, there seemed an effort to hint at something more than the obvious. The OED says that the verb “disgruntle” means “[t]o put in sulky dissatisfaction or ill-humour; to chagrin, disgust.” Consequently, the adjective "disgruntled" adds a kind of sulkiness or ill-humor gloss to the fact that the plaintiff is seeking to vindicate her rights. And courts certainly recognize that it's not good to be called disgruntled. Austion v. City of Clarksville, 244 F. App’x 639, 652 (6th Cir. 2007) (letter referring to employee as “disgruntled employee” and “complainer” was considered evidence of hostile work environment).
It's not surprising that defense attorneys use terms with a negative connotation to describe their adversaries, but "disgruntled" is creeping into judicial opinions. One not-infrequent use is in first amendment cases where courts deploy the term when they conclude that the employee's speech was about some private grievance and not a matter of public concern. See Carleton v. County of L.A., No. 08-56183, 2010 U.S. App. LEXIS 6710 (9th Cir. Mar. 31, 2010). But other courts seem to use the term generally to describe any complaint made by an employee. See Evans v. U. S. Postal Serv.,219 F. App’x 527, 529 (7th Cir. 2007); Lifton v. Bd. of Educ. of Chi., 416 F.3d 571, 575 (7th Cir. 2005).
I don't know if there's any great significance to this usage, but it is disappointing that the courts adopt words with a negative connotation in employment disputes when they are much more neutral in other settings. Lexis revealed 1004 "disgruntled employees" in its Federal & State Cases database, as compared to 399 "dissatisfied" employees. When it comes to customers or buyers, the usage flips -- only 195 are disgruntled, with 593 dissatisfied. And, if you're wondering, there are almost no "disgruntled employers" (24).
I guess employees are sulkier.
Thanks to Temi Kolarova for doing the spade work on this for me.
June 30, 2010
Canadian Government Seeks to Expand Public Safety Collective Bargaining
June 29, 2010
SCOTUS Grants Cert. on Associational Retaliation Case
On its last day of the term, the Supreme Court granted certiorari in Thompson v. North American Stainless, 09-291, a case concerning whether Title VII prohibits retaliation against a person associated with someone who engaged in protected activity under the act. A panel of the Sixth Circuit had recognized the claim, but the the court sitting en banc reversed that decision--with six dissents (see here for a prior post, and here for the Scotuswiki page collecting links).
The questions presented in the cert petition (filed by Eric Schnapper--Washington) are:
(1) Does section 704(a) forbid an employer from retaliating for such activity 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?
(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
The Solicitor General's views had been requested by the Court, and although the Court often follows that recommendation, it did not here--the SG recommended that the Court deny cert. It looks like next term is shaping up to be another big one for employment cases.
June 28, 2010
Supreme Court will decide on preemption of Arizona's unauthorized aliens statute - LawMemo Employment Law Blog
Via Ross Runkel's Law Memo comes word that the Supreme Court has taken cert in Chamber of Commerce v. Candelaria, a challenge to an Arizona law that penalizes employers from hiring aliens not authorized to work. The Ninth Circuit had upheld the law as not preempted and not a due process violation. An interesting and timely issue that will help set the tone on other state immigration laws, I imagine.
The cert questions taken are:
1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.
3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).
Busy Times in the ERISA World
1. The U.S. Supreme Court denied cert. in the San Francisco ERISA preemption case: Golden Gate Rest. Ass'n v. San Francisco, U.S., No. 08-1515, review denied 6/28/10. Apparently, the Court did not envy taking another ERISA preemption savings clause case and besides, the passage of the national health care legislation may make the issue moot now. The case concerned controversial employer mandate provisions of a health care ordinance adopted by the city and county of San Francisco to provide coverage for low-to-moderate income employees. The Ninth Circuit held the ordinance was not preempted.
2. The U.S. Supreme Court astoundingly decided to weigh in on yet another ERISA case. The issue in CIGNA v. Amara is what the standard for recovery is when a summary plan description (SPD) does not comply with ERISA. More specifically, the issue is whether pension plan participants must show that they were “likely harmed” by a deficient summary plan description before they will be entitled to recover plan benefits as set out in the SPD.
Recently Published Scholarship
- David C. Yamada: Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace, 11 Florida Coastal L. Rev. 257 (2010).
- M. Faith Angell & John J. O'Brien, Cognizing the Second Agenda: The Importance of Acknowledging Perspective When Counseling Clients in Employment Law, 82 Temple L. Rev. 607 (2009).
Herbert on Techology Issues in Labor and Employment Law
Friend of the blog, Bill Herbert, has been a busy bee. He recently posted the final paper he presented earlier this month at the 2010 IEEE International Symposium on Technology and Society held at the University of Wollongong, New South Wales, Australia. The paper is entitled: Workplace Consequences of Electronic Exhibitionism and Voyeurism.
Bill also just posted a recent research paper written with Osgood Law School Professor Sara Slinn entitled: New Technology and Representation Elections: Don't Go Mistaking Paradise for Technology Across the Road.
I look forward to reading both. Check them out!
June 27, 2010
The Coming Public Pension Crisis
Just when you thought we were coming finally out of the last financial crisis, the New York Times Magazine warns that the next great economic crisis in the United States might involve public pensions:
Ever since the Wall Street crash, there has been a bull market in Google hits for “public pensions” and “crisis.” Horror stories abound, like the one in Yonkers, where policemen in their 40s are retiring on $100,000 pensions (more than their top salaries), or in California, where payments to Calpers, the biggest state pension fund, have soared while financing for higher education has been cut. Then there is New York City, where annual pension contributions (up sixfold in a decade) would be enough to finance entire new police and fire departments . . . .
Public pension funds are now massively short of the money to pay future claims — depending on how their liabilities are valued, the deficit ranges from $1 trillion to $3 trillion.
Pension funds subsist on three revenue streams: contributions from employees; contributions from the employer; and investment earnings. But public employers have often contributed less than the actuarially determined share, in effect borrowing against retirement plans to avoid having to cut budgets or raise taxes.
Although some retirement security scholars have started to pay more attention in recent years, much more research and scholarship needs to be devoted to creative and innovative approaches to these pressing problems.
Hat Tip: Elizabeth Dale