September 11, 2010
Saints Vote to Authorize Decertification
The NFL Players Association is seeking player approval to decertify in advance of a potential lockout by owners in March when the current collective bargaining agreement expires, according to the SportsBusiness Journal. Decertifying would allow players to sue the owners under antitrust laws if the owners did lock the players out. And any effort to impose a labor agreement on the players could provide the players with treble damages.
This was the tactic the players resorted to in 1989, and it eventually gave them enough leverage to establish free agency in 1993, when the players recertified the association as their exclusive representative.
The Saints have unanimously voted to authorize this tactic, and the NFLPA hopes the rest of the teams follow suit by Thanksgiving. According to the article,
The letter does not present decertification as a fait accompli, but rather as giving the union the option to use that leverage if the need arises.
It also indicates that the union wants the option to decertify before the CBA expires. The letter states that if the NFLPA were to wait until after the CBA expires to decertify, it could not sue the NFL for six months.
If the union were to try to decertify, the league would likely sue the NFLPA, challenging the decertification as a “sham” and saying the NFLPA was still acting as a union but only filing to gain access to the antitrust laws. A source close to the league has told SportsBusiness Journal in the past that the NFL would have a strong case, because the NFLPA decertified in 1989, only to become a union again in 1993, after it won a jury trial in the Reggie White v. NFL case.
But the union has long contended that it has the right to decertify under the White settlement. That settlement was the basis for the current CBA, which was first agreed to in 1993 and has been extended several times.
So this reflects the upside of decertification, but the NFLPA would have a lot to lose by decertifying, as well. It would lose the ability to collectively bargain for the players, file grievances for them, compel them to pay dues, or control their marketing rights. The players also could lose their collective strength, something far more dangerous to the large number of players that aren't stars. The league may even gain with the decertification if it can strike deals with individuals to allow a greater percentage take of revenues for owners and convince players to allow it to control their marketing and licensing rights.
Regardless of the outcome, sports disputes seem to just about always make for more engaged labor students, so it's a win for those of us teaching labor law.
Hat tip: John O'Connell
Anti-Muslim Charges Against Swift Meatpacking Plants
The EEOC has recently filed numerous charges against Swift for incidents at two of its meatpacking plants. Apparently, there had been problems for years with a large group of Somali Muslims who work at the plant, with the parties purportedly coming to a resolution last year. However, the problems have returned. Among the allegations--many of which came during Ramadan, a month during with Muslims fast during the day--was repeated refusals to accommodate Muslim employees' additional religious observations that month (such as refusing to allow them access to needed water or places to pray), having bloody animals parts thrown at them, the use of anti-Muslim and anti-black slurs, and terminations. The EEOC seems particularly fired up about this case, so it could be an interesting one to watch.
Hat Tip: Dennis Walsh
September 9, 2010
Don't Ask, Don't Tell Struck Down
Yesterday, Judge Phillips of the Central District of California struck down the military's "don't ask, don't tell" policy on gays in the military in the case, Log Cabin Republicans v. U.S. The basis of her ruling was that the policy violated the 1st and 5th Amendments, as the government couldn't show that the policy was needed for military readiness and unit cohesion. The judge struck down the law as applied nationwide.
On one level, this is no big deal given that the military is preparing to dump the policy. On the other hand, if the case has staying power--which is far from certain--it could have an impact on cases involving governmental discrimination based on sexual orientation. This is because the judge applied a heightened standard of review for the 5th Amendment clam (per 9th Cir. precedent) and the stricter 1st Amendment review that applies content-based restrictions on speech (albeit lessened because the military is involved, requiring the government to show that the policy was “reasonably necessary to protect [a] substantial government interest").
No doubt this will be appealed, so stay tuned.
Call for Abstracts: Regulating for a Fair Recovery
Conference on Regulating for a Fair Recovery, International Labour Office, Geneva, 6-8 July 2011
The Regulating for Decent Work Network has announced that its Second Conference, on the theme of Regulating for a Fair Recovery, will be held at the International Labour Office, Geneva, Switzerland on 6-8 July 2011.
The Conference is organized by the International Labour Office in collaboration with the University of Manchester’s Fairness at Work (FaW) Research Group and the University of Melbourne’s Centre for Employment and Labour Relations Law (CELRL).
The RDW Network is interdisciplinary: researchers from a range of disciplines, including law, are invited to participate in the Conference.
Interested researchers should submit an abstract by the closing date of 31 January 2011. For further details see this Call for Abstracts.
September 8, 2010
The High Cost of Cheap Food
Late last week, six labor contractors from the Beverly Hills staffing company, Global Horizons were indicted by a grand jury on charges brought by the Justice Department in what it is calling the largest human trafficking case in US history. (See the NY Times story here, LA Times story here, CNN story here, and Honolulu KITV story with video here).
The company allegedly charged Thai workers up to $21,000 for H-2A visas to the United States, then when the workers got here, they were forced to work for less money than they had been promised in poor living conditions on pineapple farms in Hawaii and orchards in Washington State. The workers were forced to remain with threats of deportation and arrest with no way to pay back the debts they had incurred and would never be able to pay off in any event.
The EEOC has also found cause to believe that the staffing company discriminated against the workers in violation of Title VII.
This case is particularly interesting because it does not involve the exploitation of workers who come to this country or who work here in violation of federal law. Rather, these workers are legally able to work, and yet are fairly easily trafficked and thoroughly exploited even within the current immigration system. Clearly, we need a greater acknowledgment of the human trafficking problem in the United States (including trafficking of people born in this country, not just immigrants), serious immigration reform, and more support for workplace law enforcement.
Hurd Sued by HP after Joining Oracle
Mark V. Hurd, the former CEO of Hewlett-Packard is in the news again. The day after he joined Oracle as Co-President, HP sued him for violating his severance agreement to protect HP's confidential information. HP is relying on the doctrine of inevitable disclosure of trade secrets--that Hurd won't be able to help but reveal HP's trade secrets based on his knowledge of HP and the level of his position at Oracle.
While the action might seem to have some traction, there are some factors that suggest HP's case may be weaker than it first appears. Interestingly, HP had not required Hurd to agree to a noncompete agreement, and California, where the suit was filed, has not "embraced" (in the words of Larry C. Drapkin, a partner at Mitchell Silberberg & Knupp, who handles trade secret cases) the inevitable disclosure doctrine. Moreover, Oracle and HP are close partners, although they also have products that compete. If they are partners, I suppose it is possible that disclosure of a trade secret could allow Oracle to gain ground in that partnership at HP's expense, but traditionally, the harm that trade secrets law seeks to protect is harm from unfair competition--to talk about competition within the partnership takes a bit of a stretch. If Hurd is not taking part in those lines that do compete directly (Oracle recently bought Sun Microsystems, which does compete with HP), then there wouldn't seem to be a trade secret issue at all.
September 7, 2010
The European Pension Strikes
Here is a story from Reuters showing that the pension crisis is global in magnitude, and not just a US problem:
French trade unions said 2.5 million people took to the streets Tuesday to protest over pension reforms that President Nicolas Sarkozy says he is determined to implement on the way to elections in 2012.
Tapping into mounting unease over austerity as Europe emerges deeply indebted from recession, French union leaders demanded the center-right government heed their call to backtrack or run the risk of an escalation.
"If they don't respond and they don't pay heed, there'll be a follow-up and nothing is ruled out at this stage," Bernard Thibault, leader of the large CGT union, told a Paris rally.
Millions of commuters across the British capital also struggled to get to work as a 24-hour strike by workers on London's underground rail system crippled much of the network, hurting the city's convalescent economy.
Will American workers, union and non-unionized, take to the streets when they are unable to afford retirement in the coming years?
September 6, 2010
The Eleventh Circuit and the Word "Boy"
As most readers know, Ash v. Tyson is the case in which the Supreme Court reverse the Eleventh Circuit and held that "boy" could actually have racial overtones even if not modified by "black" or "white," and that a plaintiff can present evidence that he or she had superior qualifications to another person who was chosen for a job the plaintiff applied for, even if the evidence didn't "jump of the page and slap you in the face." Despite this reversal and two juries finding for the plaintiffs, the Eleventh Circuit has again held that no reasonable jury could find that "boy" indicated racial discrimination. This saga has begun to attract a fair amount of attention--again--particularly among those who have lived in the South and other areas where the term "boy" is unfortunately well know as a racial slur.
Stephen Bright (Southern Poverty Law Center and currently a visitor at my school, Tennessee) was quoted in the New York Times on this case and has written a short piece on the Eleventh Circuit and the word "boy." It's well worth the read (click here for it:
Download Bright Article).
Duong on T7 Extraterritoriality
Wendy Duong (Denver) has just posted on SSRN her article Extraterritorial Effect of U.S. Anti-Discrimination in Employment Law: Reexamining the Goals and Policies Behind the Citizenship Nexus. Here's an excerpt from the abstract:
The weak enforcement of the ILO makes its body of international labor law merely an inspiration. Thus labor protection largely remains border- and culture-bound, unless stipulated by treaty. For example, an alleged sexual harasser under American law is subject to Title VII civil liability, whereas in France, such harasser can be jailed, if found guilty.
... [Currently, under U.S. law], the action of a non-U.S. employer can be subject to Title VII, but non-U.S. employees are not protected by Title VII. This creates an anomaly: a U.S. citizen working overseas for a foreign company is protected under Title VII, if the foreign company is controlled by a U.S. entity, but his or her non-U.S. co-worker sitting in the adjoining cubicle, working for the same company, is not so protected. Yet, the statutory language and legislative intent of Title VII’s Aramco amendment are clear – the citizenship nexus must be satisfied both in the employer as well as the employee for Title VII to apply to the employment relationship.
Happy Labor Day!
Watching the Reds beating the Cards on national television Saturday (lost the season series, but still 7 games up!), I was struck by something I haven't seen on national television in a long while -- this nonpolitical AFL-CIO Labor Day 2010 TV spot. The AFL-CIO's facebook page explains:
Check out our TV ad running this Labor Day weekend celebrating working people who are the backbone of our nation and the power of working together for a stronger America. The ad will run during several major sports broadcasts.
I have to wonder, though, about the wisdom of running the ad only during sports broadcasts. That seems targeted toward a male audience (is it running on the U.S. Open?), but women are outpacing men on the job front in many respects, particularly during the current recession.
September 5, 2010
Employment law has long seen various cases involving questions of horseplay, especially with regard to workers compensation liability (e.g., Cardozo's opinion in Leonbruno). Iowa's Supreme Court recently issued a decision in a horseplay case that will be good fodder for my class, at least. From Courthouse News:
A water district employee who said "hello" to a co-worker by shaking his butt might be entitled to workers' compensation benefits after the co-worker accidentally hit him with a truck trying to return the unusual greeting, the Iowa Supreme Court ruled.
Norman Vegors and Casey Byrd worked for the Xenia Rural Water District, and they sometimes acknowledged each other in odd ways, such as by waving the boom of a track hoe at each other. One day, Vegors' hands were full, so he wiggled his butt at Byrd to say hello. Byrd tried to respond by tapping Vegors with his truck's mirror, but he accidentally hit Vegors with the truck bed instead.
Xenia contested Vegors' workers' compensation claim on the grounds that Vegors had been engaging in horseplay. The trial court agreed with Xenia and reversed Vegors' award. But the state Supreme Court overturned the decision and sent the case back to the workers' compensation board for a determination of whether Vegors' butt-shaking had been in the course of his employment.
"The character of Vegors' action of shaking his rear end -- and not the serious injury resulting from being hit with a truck -- must be analyzed to determine whether it is a deviation sufficient to bar recovery," Justice Michael Streit wrote.
Hat Tip: Paula Schaefer