January 23, 2010
Gonzalez on Encouraging OSHA Whistleblowing
Jarod Gonzalez (Texas Tech) has just posted on SSRN his article (forthcoming EREPJ) A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing. He presented this as part of a fantastic panel on OSHA at this month's AALS Annual Meeting. Here's the abstract:
Labor and employment law whistleblower statutes focus on protecting employees who complain about workplace violations by prohibiting the employer from taking an adverse employment action against the whistleblower because of his or her complaint. It is an open question whether even the strongest of anti-retaliation protections in whistleblower statutes do much to encourage employees to report wrongdoing. If more of the right kind of whistleblowing is beneficial from a policy perspective, it is important to consider other models for encouraging potential whistleblowers to act. In the workplace safety and health area, OSHA-enforced whistleblower statutes follow the traditional anti-retaliation model and have generally failed to motivate the right type of whistleblowing and protect those who do make complaints. This piece outlines an "economic rewards" approach to OSHA whistleblowing in which an employee who complains to the Department of Labor about a federal workplace safety and health violation could ultimately receive a monetary reward for the tip if the Department subsequently determines that a workplace safety and health violation occurred. While this type of approach is a novel one in the workplace safety and health area, it has worked well in the context of fraud against the government. Transporting this model to workplace safety and health has some appeal even though there are a variety of technical issues that would have to be considered for such an approach to be realistic.
January 22, 2010
DOL: Union Density Rate Essentially Unchanged in 2009
DOL Secretary Hilda Solis had the following statement today on the Bureau of Labor Statistics report on Union Members in 2009:
Today, the Bureau of Labor Statistics announced that, in 2009, the unionization rate of employed wage and salary workers was 12.3 percent, in essence unchanged from the 12.4 percent rate in 2008. Among private sector employees, the rate dropped to 7.2 percent from 7.6 percent in 2008.
The data also show the median usual weekly earnings of full-time wage and salary union members were $908 per week, compared to $710 for workers not represented by unions. Union members earn 28 percent more than their non-union counterparts.
When coupled with data showing that union members have access to better health care, retirement and leave benefits, these numbers make it clear that union jobs are good jobs.
As workers across the country have seen their real and nominal wages decline as a result of the recession, these numbers show a need for Congress to pass legislation to level the playing field to enable more American workers to access the benefits of union membership. This report makes clear why the administration supports the Employee Free Choice Act.
Just laughing to myself and thinking how former Bush Secretary of Labor Elaine Chao would have heralded these figures. Certainly, EFCA would not have been mentioned.
Invitation to Participate - UK OSHA Conference
The Law Department of Middlesex University, London and ADAPT, the Centro Studi Marco Biagi of the the University of Modena in Italy 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 and New Zealand and the USA. Susan Bisom-Rapp (Thomas Jefferson) will be presenting a keynote speech during a plenary session.
You are invited to register and reserve a 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.
Eighth Circuit issues interesting appearance/sex stereotyping case
The Eighth Circuit issued an interesting opinion in a sex stereotyping/appearance case yesterday. In Lewis v. Heartland Inns, the court reversed summary judgment in favor of the defendant, finding that the plaintiff had presented enough evidence to suggest that she was fired for not conforming to sex stereotypes in her appearance.
Lewis worked in several desk clerk positions at Heartland Inns, received raises, customer compliments, and got along with her immediate supervisors. The problem arose when some time after Lewis was moved to a day shift position, the Director of Operations saw her. That manager had interviewed Lewis over the telephone and had approved the shift. From the opinion:
After seeing Lewis, . . . Cullinan [the Director] told Stifel [Lewis' direct supervisor] that she was not sure Lewis was a "good fit" for the front desk. Cullinan called Stifel a few days later and again raised the subject of Lewis' appearance. Lewis describes her own appearance as "slightly more masculine," and Stifel has characterized it as "an Ellen DeGeneres kind of look." Lewis prefers to wear loose fitting clothing, including men's button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as "tomboyish."
Cullinan told Stifel that Heartland "took two steps back" when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner. As Cullinan expressed it, Lewis lacked the "Midwestern girl look." Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be "pretty," a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough. The front desk job description in Heartland's personnel manual does not mention appearance.
The Director ordered the Supervisor to put Lewis back on the night shift, but the supervisor refused because Lewis had been doing such a good job. The Director insisted the Supervisor resign and then told Lewis that she would have to undergo a second interview for the position she held--the second interview to be conducted with new video equipment was instituted company wide, as well, for front desk positions, justified as needed to ensure that clerks had the appropriate appearance.
At the second interview, Lewis objected, noted the appearance-related comments, and essentially set Lewis up to critique some recent policies. When she was fired, the company stated that it was because of her behavior during this interview and "hostility" to recent policies.
The court found that this was plenty of evidence that sex stereotyping was the real reason for the termination and additionally that there was sufficient evidence that the termination was in retaliation for her complaining about the discrimination. In its opinion, the court also made clear that comparator evidence is not required to prove that an employer is motivated because of the protected class of the employee. So Lewis did not have to prove that a man was not subject to the same second interview experience or same standard.
One judge dissented, stating that it did not appear that the appearance standard was being used to disadvantage women in the workplace generally. That judge also stated,
Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification.
To which the answer must be, well, yes. Those are positions for which we might assume a particular gender conforming (although stylized and not necessarily natural) appearance would in fact be a BFOQ.
January 21, 2010
Let the fun begin . . . again.
Hat Tip: Justin Keith
Fortune's 100 Best Companies to Work For
Fortune's list of the 100 best companies to work for is out for 2010. At the top of the list is SAS, the world's largest privately owned software company. So what makes it number one? It sounds like a combination of things from the article,
SAS boasts a laundry list of benefits -- high-quality child care at $410 a month, 90% coverage of the health insurance premium, unlimited sick days, a medical center staffed by four physicians and 10 nurse practitioners (at no cost to employees), a free 66,000-square-foot fitness center and natatorium, a lending library, and a summer camp for children.
The architect of this culture -- based on "trust between our employees and the company" -- is Jim Goodnight, its co-founder, and the only CEO that SAS has had in its 34-year history.
Some might think that with all those perks, Goodnight was giving away the store. Not so. SAS is highly profitable and ranks as the world’s largest privately owned software company. Turnover is the industry’s lowest at 2%.
The company has about 5500 employees in the US and an equal number outside, and also provides quite a bit of job flexibility. It's a pretty winning combination. Check out the whole list.
A New Era of Political Action By Unions and Employers?
With news that the Supreme Court has just struck down campaign spending bans on corporations (the holding stuck down a prohibition against firms airing their own campaign ads, but left in place a prohibition against direct contributions to a candidate), the next question is whether/when the same principle is applied to prohibitions against union spending. I can't see any difference between the two and would expect courts to hold now that broad bans on union spending are also unconstitutional. Unions obviously have to be careful not to use objectors' dues for political campaigns, but beyond that this appears to open the door significantly for both labor and management to influence the political process.
If the EFCA debate looked combative up to now, it may look like World War III very soon.
The SEC and Whistleblowers
Today's Washington Post has a story about the SEC and problems it's had dealing with unsolicited whistleblower information. The central focus of the piece was the SEC's inability or unwillingness to take these tips--including an early warning on problems with Bernie Madoff's fund--seriously. But, the article also touches on a theme familiar to many readers: the risk that whistleblowers take. In several of the examples in the article, the whisteblower lost their job. In one example, the SEC itself told an employer about an employee's tip, even going as far as telling the employer some of the exact things that the whistleblower told the SEC (including an inquiry about whether a reward was available, which the employer cited when firing the employee).
January 20, 2010
The Rise of The Sugar Mama
A recent story by NPR (which gets credit, or blame, for the title of this post) discussed a Pew survey finding a significant increase in the number of married women who earn more than their husbands. In 1970, only about 4% of marriages had wives who earned more than their husbands; in 2007, that number had jumped to 22%. There are a multitude of reasons for this change, including improvements in womens' earning power, stagnation in men's wages, and dramatic increases in levels of education for women. Not that everything is roses for women, as there is still a gender wage gap. But an interesting trend, nonetheless.
Hat Tip: Lynn Dancy Hirsch
Eleventh Circuit Affirms En Banc that Harrassment Need Not Target the Plaintiff Personally
Last Spring, the 11th Circuit issued a decision that reversed summary judgment granted for an employer (discussed here), a result that was particularly surprising because there were no allegations of touching and the plaintiff herself was not called names. The court voted last June to rehear the case, and today affirmed the panel decision in what appears to be a unanimous decision. *Warning the following description contains offensive language and description of behaviors that also may be offensive*
Taking the evidence in the light most favorable to the plaintiff, the court found that a reasonable jury could find that the workplace was hostile to women because they were women, satisfying the disparate treatment model of discrimination, the model the court reaffirmed was required in the 11th circuit as the theoretical basis for sexual harassment to constitute sex discrimination. The court chronicled the allegations, noting in particular, the general profanity and particularly sexualized profanity that was constantly used . That was not all,
Reeves . . . also identified a substantial corpus of gender-derogatory language addressed specifically to women as a group in the workplace. Her coworkers used such language to refer to or to insult individual females with whom they spoke on the phone or who worked in a separate area of the branch. Although not speaking to Reeves specifically, Reeves said that her male co-workers referred to individuals in the workplace as “bitch,” “fucking bitch,” “fucking whore,” “crack whore,” and “cunt.”
And unlike the Seventh Circuit, which has held that "bitch" is not necessarily gendered, this court explained why that language suggests hostility to women even when it is used against both genders.
gender-specific terms cannot give rise to a cognizable Title VII claim if used in a context that plainly has no reference to gender. Thus, for example, were a frustrated sales representative to shout “Son-of-a-bitch! They lost that truck,” the term would bear no reference to gender. In contrast, however, when a co-worker calls a female employee a “bitch,” the word is gender-derogatory. As we observed in [a prior case], the terms “bitch” and “slut” are “more degrading to women than to men.” . . . The original definition of the term “bitch” is “the female of the dog.” Webster’s Third New International Dictionary 222 (2002). The term’s secondary meanings are likewise gender- specific: “a lewd or immoral woman” or “a malicious, spiteful, and domineering woman.” Id. Calling a female colleague a “bitch” is firmly rooted in gender. It is humiliating and degrading based on sex. . . .
The terms “whore,” “bitch,” and “cunt,” the vulgar discussions of women’s breasts, nipples, and buttocks, and the pornographic image of a woman in the office were each targeted at Reeves’s gender. Like “bitch,” “whore” is traditionally used to refer only to women. The dictionary defines “whore” in terms of gender as “a woman who practices unlawful sexual commerce.” Webster’s Third New International Dictionary 2612. “Cunt,” referring to a woman’s vagina, is the essence of a gender-specific slur. . . . But even accepting that Reeves’s co-workers sometimes used the terms “bitch” and “whore” to refer to men, this usage may not make the epithets any the less offensive to women on account of gender. It is undeniable that the terms “bitch” and “whore” have gender-specific meanings. Calling a man a “bitch” belittles him precisely because it belittles women. It implies that the male object of ridicule is a lesser man and feminine, and may not belong in the workplace. Indeed, it insults the man by comparing him to a woman, and, thereby, could be taken as humiliating to women as a group as well.
The court also joined the Second, Fourth, and Seventh Circuits in holding that slurs need not be directed at the plaintiff specifically to constitute an environment hostile to her. Exposing her to hostility to her group was enough. Moreover, she complained, and the employer did not stop the harassment. That action was directed at her specifically.
Overall, this is a very thoughtful and thorough opinion, and comes to what I think is the right outcome.
Isenhath on Transgender and Gender Identity in the Workplace
Faith Isenhath (Dinsmore & Shohl, Cincinnati) has just published (in the January 2010 Federal Lawyer) the article Federal Law Regarding Transgender Employees and Gender Identity Claims in the Workplace: An Overview. It recommends that employers update their employment policies to reflect current and pending changes to the law.
The Parol Evidence Rule: The Employee’s Friend?The parol evidence rule is usually viewed as favoring the more powerful party in contracts disputes, and in the employment context that would be the employer. There are any number of cases in which the employer has avoided (some might say, evaded) responsibility for promises or representations made while recruiting employees by pointing to a contract’s merger clause, which excludes proof of such terms if not included in the writing.
An attempt by an employee to use the sauce for the goose principle was beaten back by the First Circuit but nevertheless suggests that employees can sometimes turn the tables on their bosses. In Pelletier v. Yellow Transportation, Inc., 549 F.3d 578 (1st Cir. 2008), the plaintiff tried to avoid an arbitration agreement she had executed when she began her employment by invoking her employment application, which she had signed simultaneously. The application had typical merger language: “This agreement is the entire agreement between Yellow and me regarding my right and Yellow's right to terminate employment, and this agreement takes the place of all prior or contemporaneous agreements, representations, and understandings between Yellow and me.”
Given that the application was signed at the same time as the arbitration agreement and explicitly “takes the place of all . . . contemporaneous agreements,” it would seem to have superseded the arbitration agreement. The Pelletier court avoided this conclusion by reading the two documents as consistent – in part because the employment application referred to “right to terminate” and therefore superseded only agreements relating to that right; the arbitration agreement, in the court’s mind, merely set forth a method of resolving disputes over termination and did not purport to affect the substantive right to terminate.
This kind of linguistic resolution may or may not be available for a wide variety of employment agreements, which suggests that employee attorneys should be careful to consider potential parol evidence objections to the use of documents that disfavor their clients. Of course, this depends on finding some document to supersede the objectionable clause, which will be most probable for those employees with term contracts.
(Whether or not the arbitration agreement should have been viewed as viable regardless of the court’s parsing is another question: using a Corbinesque approach, it seems likely that both parties understood the two terms to coexist, whatever the documents actually said. But courts have not always looked beyond the contract language when to do so would have benefitted the employee.)
In any event, as with private ordering generally, this is no long term solution for those who believe employees are often pressured into agreements (arbitration and otherwise) that they would prefer not to sign. Employers will quickly learn from losses and adapt their contracts to include, by reference or otherwise, terms that they truly care about.
January 19, 2010
Seton Hall Employment & Labor Law Scholars' Forum
The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law.
To that end, Seton Hall will convene its fourth annual Employment & Labor Law Scholars' Forum on January 22rd-23th. This year’s Forum will feature four presenters:
- Jason R. Bent, Smith & Bent, P.C. (Chicago, IL), The Telltale Sign of Discrimination: Information Asymmetries, Statistical Evidence, and the Pattern or Practice Doctrine
- Charlotte Garden, Georgetown University Law Center, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech
- Stephen M. Rich, USC Gould School of Law, Against Prejudice
- Hina B. Shah, Golden Gate University School of Law, Broadening Workers’ Access to Justice: Individual Liability of Corporate Officers and Agents for Unpaid Wages
The Forum's commenters are: Roberto L. Corrada (University of Denver Sturm College of Law),
Trina Jones (University of California Irvine School of Law), Susan P. Sturm (Columbia Law School), Rebecca H. White (University of Georgia Law School), Timothy P. Glynn (Seton Hall University School of Law), Tristin K. Green, (Seton Hall University School of Law), Charles A. Sullivan (Seton Hall University School of Law), Michael J. Zimmer (Loyola University Chicago School of Law).
Looks to be a great line-up of presentations, as usual. For more information, check out the forum's website.
Top 20 SSRN Downloads for Labor and Employment Profs - Jan 18, 2010 Edition
Numbers in parentheses indicate rank among Top 1500 law profs (as far as # of SSRN downloads in the last 12 months):
1. (58) Nancy Levit (UMKC)
2. (228) Richard Bales (NKy-Chase)
3. (265) Paul Secunda (Marquette)
4. (283) Orly Lobel (San Diego)
5. (390) David Yamada (Suffolk)
6. (397) Julie Suk (Cardozo)
7. (437) Suja Thomas (Illinois)
8. (519) Katherine Stone (UCLA)
9. (627) Ken Dau-Schmidt (Indiana-Bloomington)
10. (706) Sharona Hoffman (Case Reserve)
11. (819) Christine Jolls (Yale)
12. (885) Ellen Dannin (Penn State)
13. (912) Alex Long (Tennessee)
14. (984) Michael LeRoy (Illinois)
15.(1030) Joe Seiner (South Carolina)
16. (1146) David Pratt (Albany)
17. (1160) Catherine Fisk (UC-Irvine)
18. (1173) Jeff Hirsch (Tennessee)
19. (1186) Charlie Craver (George Washington)
20. (1193) Harry Hutchinson (George Mason)
There does seem to be less labor and employment types overall in the Top 1500 this time around.
Please let me know if I missed someone inadvertently.
Supreme Court Denies Cert in Hecker ERISA Case
I have written previously about the Seventh Circuit's controversial decision in the Hecker case. The court found that providing a very expansive list of mutual funds for 401k participants, satisfied the plan administrator/employer's duty of fiduciary care to plan participants. I first co-wrote an amicus brief with William Birdthistle (Chicago-Kent) when the case was on petition for rehearing en banc with the Seventh Circuit, asking the court to reconsider. When they didn't, I also more recently added my name to a law professors amicus brief asking the Supreme Court to reconsider this issue on cert.
But, alas, it shall not be. The Court today denied cert in Hecker v. Deere & Co., U.S., No. 09-447, cert. denied 1/19/10, and so we are left with a troubling precedent in the ERISA excessive fees class action area. The denial of cert. was surprising both because the Court accepted cert. in an ERISA attorneys fees case just this past Friday, and as BNA Daily Labor Report put it, "the case has spawned a large-scale debate among Employee Retirement Income Security Act practitioners, fiduciaries, and academics over the fiduciary responsibilities tied to the investment choices made for 401(k) plans."
In addition to the law prof amicus I joined, other amicus brief were filed in Hecker by AARP, the Consumer Federation of America, Fund Democracy, the National Senior Citizens Law Center, the Pension Rights Center, two professional independent fiduciaries, a financial consultant, and an ERISA compliance officer.
ERISA Attorney Fees Coming to the Supreme Court
Ever wonder about the meaning of "prevailing party" under Section 502(g) of ERISA? If so, you are in luck. The U.S. Supreme Court is about to take on this issue, perhaps as soon as April, in Hardt v. Reliance Standard Life Ins. Co., 09-448 (here is the opinion below from the 4th Circuit).
Issues: (1) Whether ERISA § 502(g)(1) provides a district court with discretion to award reasonable attorney’s fees only to a prevailing party; and (2) whether a party is entitled to attorney’s fees pursuant to § 502(g)(1) when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand.
Those in the know say this is a more common and important issue than one might think.
Hat Tip: Mark DeBofsky
January 18, 2010
Cert Granted on Arbitration Issue
The Supreme Court on Friday granted certiorari on Rent-A-Center West v. Jackson (09-497). An employee sued for race discrimination and argued that the predispute arbitration agreement he had signed was unconscionable. A provision in the agreement gave arbitrators exclusive authority to resolve disputes over enforceability of the agreement. The Ninth Circuit ruled 2-1 last September that a court, not an arbitrator, should have ruled on the issue of unconscionability.
Hat tip: Dennis Nolan and Rob Friedman.
Business-to-Business Sexual Harassment in NJ
Michael Fox over at Jottings by an Employer's Lawyer posts on Totorello v. United Rentals North America, Inc. (N.J. App. Div.), in which the female owner of a tire company sued a customer because the customer had demanded sex in return for retaining the $29,000-per-month account. The trial court dismissed the quid pro quo suit, but the appellate court reversed, finding that such a claim could be rbrought under the section of the NJ Law Against Discrimination making it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.
January 17, 2010
Captive Audiences in Canada
David Doorey, Canadian Labour and Employment Law Scholar has a nice post on captive audience meetings in Canada and whether state-level anti-captive-audience regulations will be preempted by federal labor law. And who does he turn to for further exploration of the issue, but our own Paul Secunda. Here are some of Paul's comments:
In its simplest form, labor preemption doctrine in the United States deals with the conflicts that inevitably arise between federal labor law and state laws and regulations. Based on the Supremacy Clause of Article VI of the U.S. Constitution, where federal and state labor laws collide, the state law in question must give way in favor of the federal scheme. In addition, the Commerce Clause of the U.S. Constitution has been interpreted to give Congress an almost limitless right to legislate in the labor relations area. Thus, Congress could have chosen to occupy the field of labor relations law exclusively, but it has never exercised its full powers in this regard, leaving the states free to pass many state and local laws and regulations that apply to the workplace.
The difficult issue that remains, however, is: What is the preemptive intent of the federal National Labor Relations Act with regard to potentially inconsistent, parallel state labor laws? The fact that the NLRA does not have an express preemption provision only serves to complicate the answer to this question. To clarify where the preemption line may lie, it is helpful to understand that the Supreme Court has set forth two guiding principles or themes in its labor preemption decisions: (1) the need to avoid conflicts in substantive rights; and (2) the need to protect the primary jurisdiction of the NLRB.
For more, you'll have to read the whole post.