Saturday, August 7, 2010

GPS Tracking

GPS I found the recent D.C. Cir. decision in US v. Maynard interesting, even though it has nothing directly to do with employment law.  In Maynard, the court held that police improperly used a GPS device to track criminal suspects' movements for weeks without a warrant.  That holding creates a split with the Seventh and Ninth Circuits. 

Given the expansion of GPS tracking in the workplace, I wonder whether this is a sign of more limits on such tracking in the future.  Obviously, even when the Fourth Amendment applies in the workplace, the rules are much different than in a criminal case (most notably for Maynard, no warrant is required).  But, to the extent that the legal and public opinion begins to shift towards the need to limit the government's use of GPS tracking, some of those limits may bleed into employment cases--whether Fourth Amendment cases or ones involving other types of privacy claims.  Or maybe I'm dreaming.  Only time will tell.


August 7, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Reorganizing Away the Duty of Reasonable Accommodation?

New Image Under the ADA, a qualified individual whose disability required easy access to restrooms might typically have to be accommodated by assignments to places with such access.  For example, a court reporter suffering from incontinence might have to be accommodated by giving her work that could be performed without disrupting court sessions, even if that meant assigning other reporters more frequently to live courtrooms.

But suppose the employer simply eliminates the job in question, creating another job description whose duties include rotating through numerous places, some of which have no convenient access to a bathroom?  Is rotation an essential function of the job such that the formerly qualified person is now not qualified, and therefore need not be accommodated?

That was the situation in Gratzl v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010). Illinois eliminated plaintiff’s “specialist job,” in which she was assigned to a particular site; instead, it merged all of the reporters in one "new" position to balance the workload among them. There was no reason to believe that there was any discriminatory intent in the reorganization, but in Gratzl’s new position, she was required to work in live courtrooms, leading her to request reasonable accommodations for her incontinence problem. Although the employer suggested a number of accommodations, Gratzl rejected them all and demanded to be reinstated to her former position. That made her a pretty unsympathetic plaintiff, and the court in fact criticized her for rejecting the proposed accommodations and being responsible for "terminating the interactive process and hence not entitled to relief." 

But the opinion's main thrust is not merely that the employer had provided reasonable accommodations and plaintiff had no right to her preferred one.  Rather, the Seventh Circuit suggested that her employer had an unlimited ability to change Gratzl’s job functions so long as it was not discriminatorily motivated. It did not need to maintain her position when it no longer found it appropriate, and it could change her job description whenever and however it wanted without regard to her disability. One moral of the story: so long as there's not discriminatory intent, an employer has a free pass to redefine the essential functions of  a job, even if that means the individual will not be able to perform the new tasks.

Nor is this the first time a court has approved a reorganization that eliminated what might have been an irksome duty of accommodation. The Tenth Circuit, in Hennagir v. Utah Dep’t of Corr.,587 F.3d 1255 (10th Cir. 2009), came to a similar conclusion, holding that, for ADA purposes, a job’s essential functions should be viewed from the date the tasks were assigned to the employee, not from the employee’s hire date. Part of the problem might be the 1992 EEOC ADA Technical Assistance Manual, which explicitly stated “The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job.”

This seems like a pretty big loophole, especially given the difficulty of showing intent to discriminate, and, after the ADAAA’s expansion of the definition of “disabled,” employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made:  change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want – and they won’t be held liable for disability discrimination!

Granted, employers need to make decisions to effectively run their companies and sometimes employees get the short end of the stick. And arguably the decision is consistent with the ADA's recognition that, to be qualified, an employee must be able to perform the essential functions of the job, with or without accommodation. Still, there seems something troubling about Gratzl 'sendorsement of what is, in effect if not intent, an end run around the duty of accommodation.

Thanks to Caitlin Petry


August 7, 2010 in Disability | Permalink | Comments (1) | TrackBack (0)

Friday, August 6, 2010

Rehearing Ordered for 9th Circuit Ministerial Exception Case

ClericalToday the Ninth Circuit agreed to rehear Rosas v. The Corporation  of the Catholic Archbishop of Seattle. In that case, the panel had held that the First Amendment's ministerial exception barred an action for overtime compensation brought under state law by a seminarian who did maintenance work at a Catholic church in Seattle. The panel held that because the plaintiff assisted with mass, it could not use the usual functional approach to determine whether he was a ministerial employee. By inquiring what the plaintiff's "primary duties" were, the court would entangle itself in the church-minister relationship that the exception seeks to protect. Additionally, the panel held that ministers or ministers-in-training might be ordered as part of their religious obligations to receive no pay for their work, whether the work was cleaning sinks or promoting the religion. Accordingly, the panel adopted a test similar to that used by the Fifth Circuit:

if a person (1) is employed by a religious institution, (2) was chosen for the position based “largely on religious criteria,” and (3) performs some religious duties and responsibilities, that person is a “minister” for purposes of the ministerial exception.

This case presents some of the difficult problems posed by the church/state relationship in the employment context. I'll be surprised if the full court reverses the results unless it is clear that the plaintiff here was clearly mostly a maintenance employee. Perhaps the full court simply wants to clarify the test. In any event, it will be interesting to see.


August 6, 2010 in Religion, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Thursday, August 5, 2010

The First New Process Re-decisions

NLRB As we noted, the NLRB recently issued its plan to reconsidered the two-member decisions invalidated by the Supreme Court's New Process decisions.  Now, the NLRB has announced the release of the first four of those decisions and established a database of all contested two-member decisions that provides daily status updates.  From the announcement:

From January 2008 to April 2010, the Board operated with three of its five seats vacant. During that 27-month period, the two remaining members issued nearly 600 decisions. On June 17, a divided Supreme Court ruled that the two-member Board was not authorized to issue decisions. Since then, dozens of the two-member decisions that had been challenged in federal appellate courts have been returned to the Board for new consideration. Meanwhile, hundreds of the other two-member cases were closed through compliance with the original Board decision, settlement, withdrawal or other means. Still more are in some stage of litigation or compliance stemming from the original decision. It is unclear how many of those rulings can or will be contested.

The four decisions issued today were in cases that had been pending in federal appeals courts at the time of the Supreme Court decision, and were returned to the Board. The cases are: SPE Utility Contractors, LLC, 7-CA-50767 (unlawful discharge); Chrysler, LLC, 7-CA-51553 (refusal to provide information); ADF, Inc., 1-CA-45068 (repudiation of collective bargaining agreement and withdrawal of recognition); and Regal Health and Rehabilitation Center, 13-CA-44481, et al. (unlawful conduct during organizing campaign, with bargaining order granted).

The database is a great idea (although it hasn't yet been updated with the new cases as I write this) and more evidence of the NLRB's focus on providing access to information.

Hat Tip:  Patrick Kavanagh


August 5, 2010 in Labor Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 4, 2010

UNITE HERE and SEIU Reach Settlement

SEIU  The breakup of UNITE HERE has provoked a long, protracted fight with the SEIU, under which a splinter group--Workers United--is affiliated--to settle disputes over assets, jurisdiction, and other issues of the formerly merged union.  It appears that the election of new SEIU President Mary Kay Henry has led to a breakthrough, as the unions have now reached a settlement.  Among the prizes is the only union-owned bank, Amalgamated, which goes to Workers United.  Of more importance are the jurisdictional settlements, including arbitration to settle representation of some Workers United workers, which will hopefully allow the unions to spend resources representing and organizing workers, rather than fighting with each other.

Hat Tip:   Dennis Walsh


August 4, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

SEALS Part IV: LEL During the 1st 500 Days of the Obama Administration

Nance Turner CorbettW Kramer

Cynthia Nance (left, Arkansas-Fayetteville) moderated this panel on the various statutory proposals that are going nowhere under the Obama Administration.  Ronald Turner (second, Houston) spoke about the Employee Free Choice Act and the politics that have prevented it from moving forward.  Bill Corbett (third, LSU) discussed the Protecting Older Workers Against Discrimination ActZak Kramer (Arizona State) discussed the Employment Nondiscrimination Act and its long-term potential.


August 4, 2010 in Beltway Developments, Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)

SEALS Part III: On Ricci

Zimmer Westfaulcon Mmccor Lewis Dagostino Browne

Jeff Hirsch this afternoon moderated a star-studded panel on Where Are We Now After Ricci v. De Stefano?

  • Mike Zimmer: Making lemonade out of the Ricci lemon.
  • Kimberly West-Faulcon (Loyola Los Angeles): The role that testing and merit play in Ricci: Court equates test results with merit.
  • Marcia McCormick (St. Louis): Scalia's equal protection time bomb.
  • Hal Lewis (Mercer): Ricci is a post-1991 Civil Right Act attempt by the Court to eviscerate disparate impact.
  • Robert D'Agostino: The fuss over Ricci is much ado about nothing.
  • Kingsley Browne: Responded to the prior speakers.

August 4, 2010 in Conferences & Colloquia, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

McLain: Evidentiary Issues in Employment Discrimination Cases

Mclain Lynn McLain (Baltimore) has just posted on SSRN her article Recurring Nightmares? Evidence Issues that Keep Coming Back in Employment Cases.  This is a much-more-extensive follow-up to the outline we blogged about here.


August 4, 2010 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

SEALS Part II: Workplace Privacy and the Internet

    Green Gely-rBodieRoberts

Michael Green (left, Texas Wesleyan) put together this panel on Blah Blah Blah About Blogging: Facing Facebook, and Twisting About Twitter: Employer Actions Based upon Communications Over the Internet and Other Similar Workplace Privacy IssuesMatt Bodie (second, St. Louis) led off the panel by presenting his draft of the Restatement on Employment Law chapter on Privacy and Autonomy, focusing on the sections of that chapter that impact internet communication.  Rafael Gely (right, Missouri) extended the labor/employment law analysis of blogging (which he did in a couple of prior articles) to more recent types of internet communications such as facebook and twitter.  Michael Green, after grossly insulting all bloggers by calling them "narcissistic",  used attorney ethics principles to demonstrate that employees should be given expansive privacy protections over internet communications.  Jessica Roberts (third, Houston) argued that Genetic Information Nondiscrimination Act may be overprotecting genetic privacy by, for example, preventing accommodations and restricting the ability to collect genetic information for purposes of employee wellness programs.


August 4, 2010 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

New Scholars LEL Workshop at SEALS

Koller Levinson Fink I'm live blogging from Palm Beach at the Southeastern Association of Law Schools conference, where three new scholars are speaking on labor/employment law or related topics.  Joe Seiner (South Carolina) is moderating the panel.  Dionne Koller (Baltimore) is speaking on how Title IX might be reformed to encourage sports participation by female non-elite athletes.  Ariana Levinson (Louisville-Brandeis) is proposing a new interpretation of the Electronic Communications Privacy Act for the electronic monitoring of employees.  Jessica Fink (California Western) is discussing the third-party retaliation doctrine and is arguing that a such a retaliation claim should belong solely to the employee that originally engaged in protected activity.  


August 4, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

The Bluebook

New Image Departing from my posts about employment law, I want to address a much more important topic -- the publication of the 19th Edition of  The Bluebook (aka  A Uniform System of Citation).

Now a new edition of this bible is often a cause for much weeping and gnashing of teeth as old, but loved, practices are swept out and new, untested one introduced. Who among us can forget the debate that roiled the legal academy a few years ago when the 16th Edition replaced the traditional no-signal signal by requiring a “see” for a court’s holding? OK, maybe a few in the audience have forgotten that controversy.  But be reassured, the forces of revolution were beaten back,  and the 17th Edition restored the ancien regime.  If you’re really interested in the story, try  Kris Franklin,  ". . . See Erie.":Critical Study of Legal Authority,  31 U. Ark. Little Rock L. Rev. 109 (2008).

In any event, I  come neither to bury nor to praise the Bluebook on the occasion of its 19th Edition. Rather, I’m here mostly to comment on its size, which runs to 511 arabic numbered pages, plus xvii roman-numbered, and a few unnumbered pages thrown in for good measure.  Admittedly, War and Peace is twice as long, but, hell, it’s War and Peace, not citations.

My observation about the sheer size of the 19th Edition led me to wonder how long was the 1st Edition. For those (like me) who couldn’t instantly place when it appeared, the year was 1926 (which was the same year the Irish Minister for Justice appointed the Committee on Evil Literature, although Wikipedia sees no connection between the two).  That first edition came in at a mere 26 pages. Interestingly, the bluepages of the Bluebook alone now total 51.  This is the section previously demeaned as Practitioners Notes but now  untitled but described as “how-to guide for basic citation. . . for the everyday needs of first year law students, summer associates, law clerks, practicing lawyers, and other legal professionals.” Everybody, in other words, who couldn’t make law review.

What this means is that, in the more than eight decades since 1926, legal citation complexity has only doubled, but for law review members it has increased more than 20-fold. I leave it for my readers to reflect on the cosmic significance of this fact.

At this point you might be asking whether I’m old enough to own a first edition of the bluebook. Not quite. Fortunately, one need not track down an original to read it. Would you believe that there is actually a facsimile edition of 15 editions of The Bluebook , published in two volumes? The Bluebook: A Sixty-Five Year Perspective(Hein 1998) (Hat tip to the Deputy Director of the Rodino Law Library, Barbara Mol, who remembered we had this work – who would’ve thunk it?).  

But it turns out that, in this as in much else, technology supersedes print. Pdfs of all editions can be found at  Nevertheless, as is also usually true, something is lost in the transition to digital. In this case, the site omits two early publications of a kind of ur-Bluebook from something called the Yale Law Journal, which are reprinted in A Sixty-Five Year Perspective. It also omits Bob Berring’s Introduction, which begins with a fitting paean of praise: “The Uniform System of Citation has inflicted more pain on more law students than any other publication in legal history.” Berring goes on to note, I’m not sure approvingly, that the Bluebook “quickly descends into rules of technical detail that would please only a scholar of ancient Confucian texts or a law review editor.”

Which tales us back to my main point – the damn thing is very long.  The index runs 36 pages, and, if the past is prologue, it’s still not enough. For example, the other day I looked to see how to cite a “slip statute.” No luck in the index. Also, no luck in turning to the on-line version, which (I thought) might be easier to search. Ultimately, the answer, as is so often the case, required wading through pages of Confucian texts, er citation rules.

By the way, if you're wondering what changes have been made over the years, the biggest I could find on a quick scan was the triumph of the now-ubiquitous "id." and supra/infra over such also-rans as ibid,and loc. cit. 

If you actually care about these things and want to know about some of the changes. try here and here. And if you're one of those, you've probably noticed that my citations in this post don't conform to law review requirements. Don't blame me -- this blog hasn't figured out how to do small caps.

Thanks to Kristen Herrick and Temi Kolarova for their help on this.


August 4, 2010 | Permalink | Comments (2) | TrackBack (0)

Tuesday, August 3, 2010

Getting to Work

New Image An early ADA decision, Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995), suggested that the statute might have some effect beyond the employer's front door, holding that an employer might have to provide an employee assistance in getting to work as part of its reasonable accommodation duty. Lyons requested accommodation in the form of her employer paying for her parking spot in Manhattan. She lived in NJ (natch) and was unable to take public transportation because she was unable to stand for long periods of time and climb stairs. As you might guess, parking spots in the Big Apple were pricey -- Lyons was spending $300 to $520 a month. The court reversed summary judgment of the district court and stated that reasonableness is a factual determination and it may turn on the employer’s geographical location and financial resources.


Lyons has had surprisingly little effect until recently, although one can imagine that for many disabled individuals, the daily commute to work is a real barrier to employment. Public transportation is not always feasible, leaving the employee with no choice but to drive to work. Lyons involved paying for parking, but other accommodations -- such as scheduling -- might be both less costly for the employer and of more assistance.


A recent case in the Third Circuit held precisely that. Colwell v. Rite-Aid Corp., 602 F.3d 495 (2010), held that an employer might be obligated to accommodate a disabled person in getting to work, if reasonable. Jeanette Colwell was a part-time clerk at a Rite-Aid store in Pennsylvania who was blind in one eye. Colwell’s physician stated that she should not drive at night and she requested all dayshifts. Rite Aid argued that Colwell’s trouble with getting to work at night was not the kind of difficulty contemplated by the ADA because it is a commuting problem unrelated to the workplace. The Third Circuit disagreed, stating that a modified work schedule is the type of accommodation that is expressly mentioned in the statute.


Both cases implicate the EEOC's guideline which indicate that the ADA does not require an employer to make accommodations primarily for the employee’s personal benefit. Now, getting to work is not exactly for personal benefit, but both cases illustrate the occasional difficulty of drawing the work/personal line. Certainly, many employers view their workers' commutation as their own responsibility.  The Colwell court finessed the problem by viewing the accommodation as workplace in nature -- changing shifts -- even if the reason for the shift change was external to the workplace: "our holding does not make employers 'responsible for how an employee gets to work. . .  . The scheduling of shifts is not done outside the workplace but inside the workplace."


Colwell cited Lyons, but expressed no opinion on the provision of a parking space, thus leaving the workplace boundaries for accommodation still unclear.


A twist, which the Colwell court didn't explore, was that the Rite-Aid store in question was unionized. If  shift preferences were controlled by the seniority provisions of a collective bargaining agreement, under Barnett,would make an otherwise reasonable accommodation unreasonable. Rite-Aid did mention seniority and fairness to other workers, but it apparently did not interpose a formal seniority system as the basis for its denial of accommodation.


Finally, Colwell is interesting because it suggests that there is a continuing dispute as to which party failed to participate in the interactive process. Since a finding that the accommodation would have been reasonable would seem to decide the case in favor of plaintiff, the court's continued concern about the interactive process might suggest that, even if the accommodation were reasonable, plaintiff's unjustified termination of it would  bar her suit. Maybe more on this later.


Thanks to Renee Levine for her help on this.



August 3, 2010 in Disability | Permalink | Comments (3) | TrackBack (0)

Monday, August 2, 2010

Recently Published Scholarship: Comparative Labor Law & Policy Journal

Gene Comparative Labor Law & Policy Journal
Volume 31, Number 4 (2010)


  • Margaret Otlowski, Mark Stranger, Sandra Taylor, Kristine Barlow-Stewart, &  Susan Treloar, Practices and Attitudes of Australian Employers in Relation to the Use of Genetic Information:  Report on a National Study, p. 637.
  • Pauline T. Kim, Regulating the Use of Genetic Information:  Perspectives from the U.S. Experience, p. 693.
  • Andrea Sitzia & Enrico Barraco, Protection of Privacy in Labor Relations:  The Italian Case Within the European Dimension, p. 705.
  • Thomas Bredgaard & Flemming Larsen, External and Internal Flexicurity:  Comparing Denmark and Japan, p. 745.
  • Takeshi Inagami, The Japanese Flexicurity System and the Community Firm, p. 773.
  • Emanuell Menegatti, The Choice of Law in Employment Contracts' Covenants Not to Compete Under the Italian Legislation, p. 799.

Book Reviews

  • James A. Gross & Lance Compa, reviewed by James Atleson, Human Rights in Labor and Employment Relations:  International and Domestic Perspectives, p. 837.
  • Marie-Ange Moreau & Maria Esther Blas Lopez, editors; reviewed by Stephen Crowley, Restructuring in the New EU Member States:  Social Dialogue, Firms Relocation and Social Treatment of Restructuring, p. 841.

August 2, 2010 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Dumping Sick Employees

Sick Amy Monahan & Daniel Schwarcz (both of U. Minnesota) worry that federal health care reform may have the unintended consequence of incentivizing employers to dump sick employees into the individual health insurance market.  Here's the abstract of their essay Will Employers Undermine Health Care Reform by Dumping Sick Employees?:

This Essay argues that federal health care reform may induce employers to redesign their health plans to encourage employees who are likely to consume a greater-than-average amount of medical services to opt out of employer-provided coverage and instead acquire coverage on the individual market. Although largely overlooked in public policy debates, this prospect of employer dumping of high-risk employees raises serious concerns about the sustainability of health care reform more generally. In particular, it threatens the viability of individual markets and insurance exchanges by raising the prospect of adverse selection in these markets caused by the entrance of a disproportionately high-risk segment of the population. This risk, in turn, simultaneously threatens to increase the cost to the federal government of subsidizing coverage for qualified individuals and to exempt more individuals from complying with the so-called “individual mandate.” The Essay offers several legislative solutions to the prospect of high-risk employee dumping that can substantially mitigate these risks.


August 2, 2010 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, August 1, 2010

A Progressive Bereavement Leave Policy

Bereave Michael Maslanka over at Work Matters was drafting a bereavement leave policy.  After listing all the relationships for which the employer would permit bereavement leave, the policy states: "[We] realize[] that this list is illustrative, not exhaustive, and that there are many nontraditional relationships that can be no less important to our employees. If you believe that bereavement leave is appropriate in your circumstances, please let [designated person] know, and we will work with you."

Very nice.


August 1, 2010 | Permalink | Comments (0) | TrackBack (0)