Thursday, August 12, 2010
On the heels of its new immigration law, Arizona is coming close to holding a referendum on whether the state should guarantee the right of employees to vote for a union by secret ballot. This, of course, is a direct attempt to thwart EFCA should it pass--similar to other states earlier in the year. Seems like a lot of time and money for nothing more than political points. In addition to the obvious preemption problem, the chances of a card check bill passing Congress any time soon doesn't seem too likely.
Hat Tip: Jason Walta
Two new (to me, at least) resources floated over the transom this week. One is the Whistleblower Protection Program page unveiled by OSHA last month.
A second is the New York State Industrial Board of Appeals decisions. Tip of the hit to Associate Counsel Devin Rice.
Wednesday, August 11, 2010
When the ADAAA amended the Americans with Disabilities Act in 2008, it included a provision entitled “Claims of No Disability,” which provides simply that “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.” 42 U.S.C. § 12101. Given that one has to be a qualified individual with a disability to be protected by most of the statute’s provisions (the major exception relates to medical exams), the inclusion of this provision seemed a little surprising.
Nor does the legislative history provide much in the way of insights. For example, a Section-by-Section Analysis, although providing some meaningful discussion of other sections of the ADAAA, contents itself with saying only that this provision “[p]rohibits reverse discrimination claims by disallowing claims based on the lack of disability.” H.R. REP. No. 110-730 (2008). Unlike other portions of the Analyses, there is no indication that Congress believed it was overriding misguided case law. Thus, Jeannette Cox, Crossroads and Signposts: The ADA Amendments Act of 2008, 85 IND. L.J. 187 (2010), argues that the provision is unnecessary because the entire structure of the ADA makes clear that only disabled individuals have claims.
While I agree with Jeannette, that only deepens the mystery as to why someone thought it a good idea to include this provision in the ADAAA. Maybe just a lawyer-like excess of caution. Or maybe a more subtle effort to influence the debate about whether “reasonable accommodation” is a kind of “affirmative action” or “preference?”
Although scholars have objected to “preference” language for accommodating disabled individuals, Anita Silvers, Protection or Privilege? Reasonable Accommodation, Reverse Discrimination, and the Fair Costs of Repairing Recognition for Disabled People in the Workforce, 8 J. Gender,Race, & Just. 561 (2005), the Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), explicitly rejected the notion that accommodation had to stop short of preferences for disabled workers.
Nevertheless, the “preference” language continues to influence circuit court decisions. Before Barnett, a number of decisions declared that the ADA does not command “discrimination in favor of the disabled,” e.g., Matthews v. Commonwealth Edison Co. 128 F.3d 1194 (7th Cir. 1997), but even after the Supreme Court spoke, the preference objection continues to pop up. For example, Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007), held that, because the “the ADA is not an affirmative action statute,” it does not require an employer in filling a position to prefer a qualified disabled employee to a more qualified nondisabled worker. And while the Supreme Court granted certiorari in Huber, the case settled before the Court could decide it.
Might the provision of the ADAAA barring claims by the nondisabled provide ammunition when the Huber issue arises again before the Court? Or is this language too oblique to have much chance of influencing the Justices?
Thanks to Caitlin Petry
Tuesday, August 10, 2010
Sam Estreicher (NYU) and Zev Eigen (Northwestern) has just posted on SSRN their chapter, "The Forum for Adjudication of Employment Disputes," which will appear in the Research Handbook on the Economics of Labor and Employment Law (edited by Michael Wachter and Cynthia Estlund; published by Edward Elgar). The abstract:
This chapter focuses on the appropriate design of the forum for adjudication of employment disputes. By the term “adjudication,” we refer to the resolution of “rights” disputes – disputes over the application of a contract or the application of a statutory or regulatory rule to a particular factual situation. We are not referring to “interests” disputes – disputes over the substantive content of an initial contract or renewal agreement. In considering the design question, we assume that all involved actors, (employees, employers, unions, etc.) retain whatever endowments they currently possess in terms of intelligence, energy, income, occupational status, access to resources, union representation, and statutory and contractual rights. Holding these endowments constant, we ask what institutional arrangements for adjudicating rights disputes would do the best job of resolving those disputes in a fair, efficient manner for workers, managers and the public generally.
On the legislative front, we oppose current efforts in Congress to amend the Federal Arbitration Act to prohibit predispute arbitration agreements. At least if applied in the employment context, this is a case of throwing out the baby with the bath water. Employment arbitration, if it is properly structured and regulated, improves the likelihood that employees, and most especially those who are relatively low-paid, will be able to obtain an adjudication on the merits of their rights disputes with the employer. Abolition of employment arbitration simply relegates those employees to the courts to fare as best they can on their own in a complex, formal litigation environment.
Based on what is practically and politically feasible as of this writing, employer-promulgated ADR should be the basis of an employment adjudication system that supplements the work of courts, administrative agencies and, in the union sector, the grievance and arbitration process. We say this because unless adequate resources are provided to administrative agency adjudicators or courts to handle responsibly the vast increase in self-represented employee claims – which we think unlikely – the appropriate legislative response, even for critics of employer-promulgated ADR, is to develop safeguards that help minimize their concerns without driving employers to abandon the process entirely.
If we were starting from scratch, we would be inclined to consider a system similar to Great Britain’s. The UK approach started as a wrongful dismissal statute and over time also assumed adjudicatory authority over discrimination claims. The UK system mixes government-supplied mediation services with a tripartite government-funded, public adjudication. The system supersedes any common law cause of action for breach of the employment agreement and employment statutes; employment disputes that go to the regular civil courts are limited to libel and slander, certain torts and claims for injunctive relief for breach of restrictive covenants. Class actions are not authorized.
There may be some institutional features of the UK approach that are difficult to replicate here. One such feature is the tripartite adjudicatory structure used in England. With our low union density in private companies and the fact that employers tend not to form representative associations in the employment law field, it will take some ingenuity to develop a regularized procedure for selecting employer- and employee-side adjudicators.
The more difficult question is whether there is any political will to adopt something like the UK system. Lawyers representing employees would not necessarily oppose such legislation if they could remove all caps on recovery and retain their ability to bring lawsuits (including class actions) in the courts. Employers might support such legislation, if it did not include abolition of employment at-will and there was some institutional guarantee of modest awards of the UK variety. Most employees, we believe, would be best off under the UK approach but we cannot get there politically. Therein lies the dilemma for law reform.
We do believe, however, that working with what is in place at many companies, much can be done to improve employer-promulgated ADR to pick up many of the desirable features of the UK approach but in an American flavor responsive to U.S. legal and popular culture.
Looks like an interesting approach to a significant problem in enforcing employment rights, so check it out.
The Chive, via Orly Lobel, presents this saga-in-pictures of a young woman who quit her job via a dry-erase board, then emailed the photos to her entire office. For the entire story, go to the source -- I've reproduced only three of the thirty-two photos.
Or not, as several comments have pointed out.
Paul Secunda (Marquette) has just posted on SSRN his essay (forthcoming ABA Tax Section NewsQuarterly) 401K Follies and the Need to Reinvigorate the U.S. Annuity Market. Here's the abstract:
Even given potential issues with requiring an annuity option for 401K plans, the time has come to hedge as a society against the risk associated with the recent embrace of the 401K as the private retirement funding vehicle of choice in the United States. The proposal described herein seeks to diminish the retirement security deficit through three interlocking regulatory parts: (1) a requirement to offer an annuity as part of 401K distribution options; (2) mandatory education pre-distribution on annuities; and (3) mandatory fee disclosure by annuity providers. These steps will likely reinvigorate the annuities market in the United States and help to bring an end to the 401K Follies.
Monday, August 9, 2010
The New York Times has a story on a strike (technically the employer locked out employees on the eve of a strike) that I have to post on as a nod to my son's love of superheroes. The reason? This strike is at a Honeywell plant that is the country's only uranium conversion plant and is located in Metropolis, Ill. which describes itself as the hometown of Superman. The reasons for the work dispute are what you'd expect at such a plant: safety issues related to what the workers and their union perceive as a rash of cancer cases among workers.
Mark Hurd, until Friday CEO of Hewlett-Packard, apparently lost his job from what began as a sexual harassment charge. Although the facts are still coming in, it appears that Jodie Fisher (left) worked as an event-planning contractor for HP, where she came into contact with Hurd. She and Hurd apparently spent some time (and the company's money) together, though Hurd is now saying the relationship was not sexual. Two weeks ago, Fisher's attorney sent a letter to the HP Board accusing Hurd of sexual harassment. That triggered a Board investigation in which the Board concluded that no harassment had occurred, but that Hurd had falsified expense statements connected with the time he spent with Fisher. The Board asked for Hurd's resignation on Friday. Today, the Wall Street Journal reports that Fisher was "surprised and saddened that Mark Hurd lost his job over this. That was never my intention."
Neither Hurd nor Fisher come out of this looking good. Hurd until now had a golden reputation at HP -- the company's financial performance has improved markedly under his leadership, and he is widely credited with instilling a culture of high ethical standards at the company. Falsifying $20,000 in expense statements -- pocket change to a person of Hurd's income -- was not a bright move. Nor is trying to date (if in fact that's what happened) a subordinate -- that's always an invitation to a claim of sexual harassment.
Fisher doesn't look so great here, either -- if nothing sexual occurred and she didn't want Hurd to lose his job, why did she have an attorney send a letter to the HP Board? An allegation of sexual harassment is supposed to trigger a company investigation and, if warranted, prompt effective remedial action. When Fisher says she was not interested in any such remedial action, that makes it appear that all she wanted was money. Was this just a slightly more-refined extortion attempt than Rick Pitino's?
If Hurd crossed the sexual harassment line, then Fisher and her attorney had every right to send that letter. But if he did not, then invoking the sexual harassment laws in this manner constitutes an abuse of legal process, and disserves real victims who depend upon this process to redress real wrongs.
Comments are welcome.
- Peter E. Shapiro, Union Shops, Not Border Stops: Updating NLRB Sanctions to Help Organize Immigrant Workers After Hoffman, 78 George Wash. L. Rev. 1069 (2010).
- Aditi Bagchi, The Myth of Equality in the Employment Relation, 2009 Mich. St. L. Rev. 579.
- Amelia Michele Joiner, The ADAAA: Opening the Floodgates, 47 San Deigo L. Rev. 331 (2010).