Friday, October 15, 2010
Today's Wall Street Journal points out that while labor unions and urban activists fight tooth and nail to keep Wal-Marts out of town, they often embrace Target, notwithstanding the fact that Target, like Wal-Mart, is nonunion.
Perhaps the difference is that Wal-Martt has been so militantly in-your-face about its nonunion status -- it's made itself an easy "target".
Thursday, October 14, 2010
Brishen Rogers (Temple) has just published "Acting Like a Union": Protecting Workers' Free Choice by Promoting Workers' Collective Action, in Harvard Law Review Forum. The essay is a response to Ben Sachs's article on labor law reform.
Wednesday, October 13, 2010
Kasten sued the employer, asserting a retaliation claim under the Fair Labor Standards Act (FLSA). The trial court granted summary judgment in favor of the employer. The 7th Circuit affirmed and denied rehearing en banc . . . .
Kasten alleged that he was discharged in retaliation for making oral complaints to his superiors that the employer's placement of time clocks violated the FLSA. The FLSA's anti-retaliation provision prohibits an employer from retaliating against an employee because (among other things) the employee "has filed any complaint...." 29 USC Section 215(a)(3).
The 7th Circuit held that "any complaint" includes an employee's internal ("intra-company") complaint. However, the court also held that an employee does not "file" such a complaint in this context when he submits the complaint in purely unwritten form.
As far as the oral argument, here is my quick analysis of the transcript:
1. The employe argued that "filing" includes an oral communication, because "'any' means any, which includes formal or informal, written or unwritten communications. And the words in the statute were designed to have a broad construction under section 2 of 202 of the statute and under Mitchell v. DeMario and the Tennessee Coal case." This a clear attempt to make a texualist argument and thus persuade Justices Scalia, Thomas, and Alito on the merits of their case. Justice Alito pushed back and asked whether the employee's attorney was "filing" his comments to the court and that "filing" usually refer to a written statement. Justice Scalia later turns to the meaning and sums up by saying - "Come on now, people don't talk like that . . . It is absurd."
2. Justice Sotomayor also wondered whether filing could occur outside the workplace at a cocktail party. Counsel for employee seemed a little unprepared to answer that question.
3. Justice Breyer comes to the aid of employee counsel and limits the potential scope of a holding by suggesting that, "Why do you feel the need to go beyond, say, what the AFL-CIO identifies as a normal . . .filing? They use language like, at the nitial stage of the grievance procedure, there is confrontation with an eye to fact finding, and the dispute is joined when the employee or the steward orsupervisor come face-to-face to identify, to discuss, and hopefully to resolve a problem."
4. Justice Scalia weighs in: "That is to say, if indeed the complaint has to be quote, "filed" with the government, I'm inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay. But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context."
5. The Assistant Solicit General points out that 20 or so statutes have similar language as the FLSA and most have been interpreted in one way or another to permit intra-company oral complaints to serve as the basis for a retaliation claim. Although there might seem to be some impracticalities with this scheme, other similar schemes have not proven to be unworkable. The FLSA requires submission to an employer, as opposed to a co-worker, but that complaint can take either oral or written form.
6. As far as a potential standard for what is an operative complaint, the Asst SG suggests: "I think the kind of indicia or formality you are talking about are signs that the employee has submitted to his employer an assertion of statutory rights under the FLSA. I think those are the two things that the lower courts have consistently looked to." Later: "[W]hether the employee has submitted a complaint to his employer that has put the employer on notice that that employee is asserting statutory rights under the FLSA,claiming that he is legally entitled to something he is not receiving."
7. Counsel for employer says allowing oral complaints would lead to an inherently workable standard. He would limit filing a complaint to instituting a formal proceeding with the government, not just filing an oral, intra-company complaint. This is because the statute is aimed at getting information about an FLSA violation to the government. In this regard, employer counsel states: "I do think it is fundamentally important for this Court to decide the underlying question of whether oral complaints are sufficient only in the context in the first instance of deciding whether or not it has to go to a government agency as opposed to any kind of private or intracorporate activity."
8. Counsel also went back and forth on whether limiting retaliation actions to where employees complain to the government would give the perverse incentive for employees to air their dirty laundry before trying to work things out with their employers. There seems to be a real incongruity on the one hand to tell employees to complain internally first (Faragher and Ellerth) and then in a case like this one and in a case like Garcetti where employees are being required to report outside their workplace. Employer counsel that was the intent of Congress; employee counsel, of course, disagreed.
This case seems to come down to the meaning of "filing a complaint" and whether a standard that does not require strict written formalities will be too difficult to implement. Not sure how this case comes out, but if the employee loses it is because the majority was unconvinced that a retaliation provision unhinged from a formal procedure would be workable. Or that the language here must be limited to formal reporting violations to the government.
On the other hand, if the employee wins, the employee and the government have convinced the court that although there is some ambiguity in the statute, allowing oral, intra-company complaints to a form the basis for a retaliation claim is workable and consistent with how other labor and employment law retaliation provisions have been interpreted. It is also consistent with giving employees incentive to report violations internally without involving the external machinery of the government.
Prediction: 5-3 for employer (with Justice Kagan recused). I believe Kennedy will vote with conservatives here in order not to undermine the productivity and order of the workplace through an unworkable standard. In short, he might view this case much like Garcetti and not concern himself with the incentives being established for employees with FLSA complaints in the future.
Tuesday, October 12, 2010
Not exactly Garcetti II, but the United State Supreme Court took cert today in a case involving a ruling affirming a jury verdict for a police chief claiming retaliation under the First Amendment's petition clause (Duryea v. Guarnieri, U.S., No. 09-1476, 10/12/10) (here is the Third Circuit opinion below and the petition for writ of certiorari).
Although the Borough argues that this case should be handled like other free speech cases and be dismissed because the dispute does not meet the Connick "matter of public concern" test, the police chief argues that there should be different standards applied for petition clause claims as opposed to free speech claims.
Interestingly, a similar argument arises over whether the Connick/Pickering/Garcetti framework should apply in association claim cases under the First Amendment. In Reflections on the Techicolor Rights in American Labor and Employment Law, I observed:
There is some dispute over whether an association claim must relate to a matter of public concern before the Pickering balance applies. See Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 n.3 (not reaching the question but observing that “[f]ive Circuits have adopted the public concern requirement for freedom of association claims and two have not . . . .The 11th Circuit recently reaffirmed its allegiance to the no public concern test faction. See Cook v. Gwinnett County School Dist., 414 F.3d 1313 (11th Cir. 2005).
Friend of the blog, Bill Herbert, has also written on this topic in The First Amendment and Public Sector Labor Relations. Bill points out in an email to me:
Keep in mind that the right to petition was one of the arguments against granting exclusive collective bargaining representation in the public sector to an employee organization. Also, the clause has a distinct history for those on the Court who claim to be originalists (never mind the history of the congressional refusal to accept anti-slavery petitions).
So all and all, Guarnieri has the makings for a very interesting public employment decision. I will certainly have additional thoughts on the question presented after oral argument in the case, so stay tuned.
Call a mass meeting. Then, send everyone a color-coded message on their cell phone telling them whether their job is safe, whether they are "at risk", or whether they need to re-apply for their existing jobs.
That's how EverythingEverywhere, the mobile phone company created by the merger of Orange and T-Mobile, told its employees last month about their job status.
For more, see this story in the Telegraph. (Photo courtesy of the Telegraph.)
Monday, October 11, 2010
The Nobel Prize in Economics was awarded today to three researchers for their work on unemployment. Peter Diamond, Dale Mortensen, and Christpher Pissarides received the award for their research into diffuclties that can arise when buyers and sellers try to find each other--particularly in the labor market. As described by the New York Times:
For decades, the researchers have studied what happens when a market is not made up of identical, cookie-cutter units — as is the case with the job market, where workers have different skills and weaknesses, and where all companies have different types of jobs they need to fill. In many cases, there are significant obstacles to finding the ideal match between a buyer and a seller, like matching a job-provider to a job-seeker. . . .
Some of the applications of the research include understanding why unemployment rises during recessions, why different people get different wages, and how so many people can be unemployed at the same time there are a large number of job openings available. Their work has suggested, for example, that unemployment benefits can have the unintended consequence of prolonging joblessness by making it less costly to stay unemployed. . . .
In a telephone interview with reporters at the Nobel news conference in Sweden, Professor Pissarides said that he thought the work being honored had one lesson in particular for today’s policy makers: “What we should really be doing is make sure the unemployed do not stay unemployed for too long, to try to give them direct work experience,” so that they “don’t lose their attachment to the labor force.” So-called “search theory” has also been applied to many other areas, like housing, public economics, family economics, finance and monetary economics.
As we posted this summer, Sam Eistreicher (NYU) & Zev Eigen (Northwestern) have an article on employment ADR, titled "The Forum for Adjudication of Employment Disputes." They now have an update of the article, which you can find at the following link: Download Eigen-Estreicher Paper.
- Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Georgetown L.J. 1079 (2010).
- Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98 Georgetown L.J. 567 (2010).
- Benton C. Martin, Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title VII, 59 Emory L.J. 1297 (2010).
- Joseph D. Ricahrdson, In Name Only: Employee Participation Programs and Delegated Managerial Authority After Crown Cork & Seal, 62 Admin. L. Rev. 871 (2010).
- Yongdan Li, Applying the Doctrine of Unconscionability to Employment Arbitration Agreements, with Emphasis on Class ActionArbitration Waivers, 31 Whittler L. Rev. 665 (2010).