Saturday, February 6, 2010
Yesterday, the NLRB's Chairwoman, Wilma Liebman released a statement on the nomination of Craig Becker (and the other nominees) to the Board. Here it is:
I am disappointed that we still do not have a fully constituted Board despite the naming of three nominees last summer. The Board has been in limbo for a long time. For more than two years, the Board has had to operate with three vacancies, leaving only myself and Member Peter Schaumber to decide the hundreds of cases that come before us. We have done our best to carry out the Board’s important work, issuing more than 500 decisions in cases involving thousands of workers across the country. But our authority to do so has been challenged and now the Supreme Court will decide whether we can continue to function. At the same time, the Board has been unable to move forward on the most significant cases before it. I look forward to a time in the near future when the Board is back at full capacity resolving issues vital to American workers and their employers.
It's also beginning to look like a recess appointment(s) might be considered. Stay tuned.
It's also beginning to look like a recess appointment(s) might be considered. Stay tuned.
Hat Tip: Patrick Kavanagh
Hat Tip: Patrick Kavanagh
Orly Lobel, who recently learned that she had been named a Herzog Endowed Scholar, now has been awarded a Robert Wood Johnson Foundation grant. The grant is one of fifteen new research grants bestowed nationally by the Public Health Law Research Program (PHLR) of the RWJF. The grants fund research that will help policymakers and researchers understand how laws can affect public health. Orly will be working on the grant with On Amir of the UCSD Rady School of Management.
Orly and On's project will explore how individuals make decisions about: 1) vaccinations, 2) sexual behavior, 3) preventative medication and health habits, 4) medical procedures and treatment, and 5) health insurance coverage. The study will map existing case law and regulations on the presentation of risk-related information, such as the validity and interpretation of waivers and disclaimers and will uncover patterns in choices and preferences building on behavioral insights. The project was funded $150,000 for 18 months.
Many congratulations, Orly!!!!!
Friday, February 5, 2010
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has posted extensive new data on job patterns in the private sector, as part of the Obama Administration’s Open Government Initiative.
Another great development for research. For more info on the impetus behind this, see our prior blog post on the executive order here. The EEOC's press release is here, and the page for the data sets is here. It's a good start.
James J. Brudney (Ohio State) has just posted on SSRN his article (forthcoming Southern California L. Rev.) Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns. Here's the abstract on this timely article:
The article addresses an important yet largely overlooked issue of statutory meaning and labor relations policy: employers’ aggressive use of civil RICO actions to chill coordinated union efforts in the organizing and bargaining arenas.
Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to claim that the campaigns constitute actionable extortion. When these employer claims survive a motion to dismiss, they carry the threat of treble damages, attorneys’ fees, and reputational harms associated with unions being labeled mobsters. Such threats are usually enough to force a settlement if a motion to dismiss is denied, and this often means the demise of the union’s organizing or bargaining efforts. Countless millions of dollars have been expended on lawsuits involving civil RICO and unions, and there is no sign the litigation will abate any time soon.
The article contends that as a matter of law most RICO extortion claims against union comprehensive campaigns should not survive a motion to dismiss. In making its argument, the article examines in unprecedented depth the remarkable conversation between the Court and Congress regarding RICO – how the Court in the 1980s consciously expanded the text’s meaning well beyond conduct Congress had meant to reach; how Congress’s serious reform efforts over a 15 year period met with no success; and how the Court since 2001 has proceeded to adopt restrictive interpretations of civil RICO in the face of the prolonged congressional failure to do so. Having discounted Congress’s inability to enact RICO reform, the Court has signaled a willingness to exercise its own constraints when interpreting the language and concepts of civil RICO. That willingness, along with previous Court decisions reconciling federal regulation with various forms of aggressive speech-related activity, helps to frame and guide an appropriate response to the extortion cause of action at issue.
The Department of Labor's Office of Contract Compliance Programs issued it's budget request for FY'11 and reported on its enforcement efforts from FY '09 (the report is here). The numbers are these:
In FY 2009, OFCCP entered into financial settlements with 94 contractors for back pay that totaled $9,314,978. The agency's enforcement efforts corrected unlawful employment discrimination for more than 21,839 American workers. OFCCP negotiated settlements that provided 2,249 new job opportunities for affected workers. In addition to negotiated settlements, in cases where findings of discrimination could not be resolved, the Agency referred 20 cases to the Office of the Solicitor for further enforcement and litigation action. The increase in job opportunities for American workers provided redress for acts of discrimination and leveraged other resources in the workforce development system to ensure worker success and fairness. Annualized salaries associated with these new jobs are not included in the aforementioned $9.3 million in back pay. This change in how the agency reports monetary awards for workers who have been discriminated against will provide transparency. Monetary benefits for affected workers will be reported as workers are actually hired and paid.
As a part of its compliance and enforcement efforts, OFCCP completed 4,000 compliance evaluations. Results from these evaluations concluded in conciliation agreements with nearly 700 contractors during FY 2009.
The report also details what the Recovery and Reinvestment Act money was used for. The change in the way that the OFCCP is reporting monetary awards is a good move in the transparency direction.
Secretary Solis testified this week before the House Committee on Education and Labor on this and the enforcement efforts of other parts of the Department of Labor. It all boils down to significantly greater enforcement of the laws the DOL is responsible for. You can see her testimony here.
Hat tip: Pat Schaeffer
The Department of Labor announced today that the unemployment rate is now at 9.7%, down from 10% last month. But that drop is deceptive as there was a 20,000 job loss in January (and December's losses were adjusted download by a significant amount). So what's going on? Probably more people dropping out of the job market (the 16.5% underemployment rate is a related phenomenon), making the overall job situation look better than it is. This will have another counter-intuitive effect once hiring begins in earnest. Initially, the unemployment rate will likely increase for a while as people who dropped out starting looking for work again. Yet another reminder that one number--especially the unemployment rate--only tells part of the story.
Thursday, February 4, 2010
As expected, the Senate HELP committee has approved Craig Becker's nomination to the NLRB, on a 13-10 party-line vote. However, Sen. McCain has vowed to keep his hold on the nomination, so unless there's a defection among Republicans (if you believe that's going to happen, I've got a bridge for sale), the nomination still looks doomed.
Word is that Majority Leader Reid is planning on bringing a cloture vote for Becker on Monday. Given that now-Sen. Brown was sworn in today, I really don't see how this is going to turn out well for the nomination.
The Tenth Circuit issued a really interesting opinion yesterday in a matter that may have big implications for lawyers' professional organizations, and which also appeared to the court at least to raise an issue of first impression. The facts were these: Sam Clyma sued his employer Sunoco, Inc. for employment discrimination. He won a jury verdict. He and Sunoco cross-appealed. While those appeals were pending, the Oklahoma Employment Lawyers' Association filed an application with the district court to interview the jurors in the case for instructional purposes. OELA is a professional organization of plaintiffs' employment lawyers, and it provides continuing legal education. It wanted to do a program on jury dynamics, and to gather some information from these jurors for that purpose. The district court denied the application by minute order, and OELA appealed. The parties to the case, Clyma and Sunoco settled and dismissed their appeals, so this was the only issue left.
The court of appeals construed the appeal as a petition for writ of mandamus, because someone not a party to a case may not usually directly appeal an adverse ruling. The court also found that OELA had standing to challenge the order under the First Amendment, a reminder that the standing analysis is very shallow. The court held that the right of this professional organization to collect information for its members and for commercial purposes "may not be entirely devoid of First Amendment implications." And because of that, it had alleged a concrete and particularized injury to itself and/or its members.
Our research suggests that the substantive question presented in this case may be one of first impression, namely whether the First Amendment requires that attorneys who did not participate in the underlying litigation be given access to jurors to assist them in the preparation of an educational program for the use and benefit of members of a professional organization.. . .We in no way suggest that the district court’s denial of OELA’s application to interview jurors represents an oft-repeated and manifest, persistent disregard of applicable law. But . . . we are unwilling to conclude anything from the district court’s terse denial of OELA’s request. Whether the First Amendment requires the district court in this case to craft a narrowly tailored order utilizing the least restrictive means to protect the jury and the administration of justice, thereby allowing OELA some form of access to the jurors, is a question we are uncomfortable deciding in the first instance, even more so given the lack of any opposition to OELA’s application. The apparently novel issue presented certainly requires the district court to exercise some discretion in ruling upon OELA’s application and therein lies the fundamental problem in this case.
And so the court of appeals ordered the district court to consider the motion and exercise meaningful discretion in making its decision.
This case is remarkable for a number of reasons, but it also presents an interesting opportunity for lawyers' associations and for researchers. There may very well be no First Amendment right of access to jurors, or at the very least, the jurors' right of privacy may outweigh any small right there is. Still, studies of juror behavior are very valuable tools to train litigators but also to evaluate how the jury system works in our system of justice.
Wednesday, February 3, 2010
Craig Becker's nomination to the NLRB, as we've been following, has been a nail-biter. However, developments on the seating of Massachusetts Senator-elect Scott Brown may be the game-changer. Apparently, Brown is pushing to be seated today--rather than Feb. 11, as originally planned. If successful, Brown's replacement of now-Sen. Kirk may be the difference on whether a filibuster on Becker's nomination survives. The Huffington Post's take:
The labor community is fuming over the expedited plan to seat Senator-elect Scott Brown (R-Mass) this Thursday afternoon, arguing that Democratic leadership is torpedoing one of its most important causes -- the nomination of Craig Becker to the National Labor Relations Board.
On Wednesday, Brown shocked political observers by announcing that he was asking Massachusetts Gov. Deval Patrick to sign his election certification papers and that he would present those papers to Senate Majority Leader Harry Reid (D-Nev) the next day. The offices of Patrick and Reid, both Democrats, insist they have little institutional power to delay Brown's seating, even though the Massachusetts Republican initially pegged February 11th as his start date. . . .
"Democrats were outmaneuvered yet again," emailed a labor source who was granted anonymity to speak freely. "I'm used to us caving, but they didn't even [try to delay Brown's seating]. They just hit the mat.
"I love how we cave to the Republicans and won't seat our Senator, [Al] Franken. Then we reverse cave and seat their senator. I mean forget the analogy of one is playing checkers and the other playing chess. It's like one is playing chess while the other is sitting there picking their nose."
Leadership aides insist that, in this case, their hands are largely tied. . . . "If we get the paperwork, then we are going to seat him," another Democratic staffer told the Huffington Post. "That was our commitment all along and that is what we are going to do... If they come to us with the certification papers there is very little we can do."
Not that NLRB nominations have been smooth as of late, but I wonder if this is the beginning of an all-out war on future nominees. If Becker can be criticized for working at the SEIU (I know other charges were leveled at him, but this seems to be the central issue at this point), then any Republican nominee's work for employers seems fair game too. As the nose-picking quote shows, labor interests are really going to be mad if Brown manages to spike Becker's nomination.
Hat Tip: Justin Keith
We've posted quite a few stories on the large number of immigration raids that have occurred across the country over the last few years (see here for example). But what we haven't seen much on is the aftermath of these raids. The Center for Immigration Studies (an anti-immigration think tank) recently put out a report looking at how raided employers replaced its workers. The study found that the bulk of those jobs went to native Americans. According to a USA Today report on the study:
When federal agents descended on six meatpacking plants owned by Swift & Co. in December 2006, they rounded up nearly 1,300 suspected illegal immigrants that made up about 10% of the labor force at the plants. But the raids by Immigration and Customs Enforcement (ICE) agents did not cripple the company or the plants. In fact, they were back up and running at full staff within months by replacing those removed with a significant number of native-born Americans, according to a report by the Center for Immigration Studies (CIS).
That was the most extreme example of what has become an increasingly common result of the raids: "They were very beneficial to American workers," according to Vanderbilt University professor Carol Swain. "Whenever there's an immigration raid, you find white, black and legal immigrant labor lining up to do those jobs that Americans will supposedly not do," said Swain, who teaches law and political science.
Exactly who is filling the jobs has varied, depending on the populations surrounding the plants:
• Out West, one of the Swift plants raided by ICE, had a workforce that was about 90% Hispanic — both legal and illegal — before the raids. The lost workers were replaced mostly with white Americans and U.S.-born Hispanics, according to the CIS.
• In the South, a House of Raeford Farms plant in North Carolina that was more than 80% Hispanic before a federal investigation is now about 70% African-American, according to a report by The Charlotte Observer.
• Throughout the Great Plains, a new wave of legal immigrants is filling the void, according to Jill Cashen, spokeswoman for the United Food and Commercial Workers union, which represents 1.3 million people who work in the food-processing industry. Plants are refilling positions with newly arrived immigrants from places such as Sudan, Somalia and Southeast Asia.
Another interesting issue raised in the article is what happens to wages after these raids. There appears to be a post-raid bump in wages in most instances and at least one commentator suggested that the difference is due to employers' ability to take advantage of immigrant workers who are too afraid to pursue their workplace rights.
Hat Tip: Barbara Barreno
For those unfamiliar with employment law, it might surprise you to learn that in the United States most states do not recognize an implied covenant of good faith and fair dealing (GFFD) in employment contracts, even though such covenants are deemed to exist in commercial contracts under the UCC.
By my last count, only nine state have adopted GFFD in employment contracts. Though the type of GFFD implied in employment contracts varies, the most common form involves a situation where an employee's justified expectations to pay or benefits are frustrated by an arbitrary employer action (like an out-of-the-blue firing).
Well, Wisconsin might be the tenth state to recognize such a GFFD in employment in the case of Phillips v. US Bank (Wisconsin Ct App 02/02/2010), though the Wisconsin Appellate Court was careful not to call it that.
From Ross Runkel's Employment Law Memo:
Phillips sued the employer, alleging that the employer discharged her in order to avoid paying promised benefits. Although the benefits were described as having accrued, receipt of the benefits was contingent on continued employment. The trial court granted summary judgment in favor of the employer. The court reversed.
The court noted that an employer is not obligated to act in "good faith" when exercising its right to discharge an at-will employee. The court concluded, however, that "an at-will employee does not forfeit benefits that have accrued during his or her employment even though the agreement governing those benefits conditions their receipt on the employee's continued employment [,] if the employer fires the employee solely to prevent the employee from getting the accrued benefits…." The court observed that, although an employer need not comply with "good faith" in discharging an at-will employee, "an employer must comply in good faith with its 'contractual obligations.'" The court applied agency principles in arriving at its decision.
I'm not sure I understand the distinction the court makes between exercising good faith in discharging an employee versus discharging a contractual obligation, but for me if it walks, talks, and acts like a duck, it's a duck. Welcome to the good faith in employment club, Wisconsin.
The US Department of Labor (DOL) and the Treasury are requesting feedback on the implications of integrating a lifetime annuity arrangement into defined contribution plans.
The DOL and Treasury yesterday issued a request for information (RFI) asking for comments from industry participants about how to improve retirement security through lifetime annuities, or other benefits that provide income through a participant's lifetime.
The agencies said they were reviewing the Retirement Income Security Act and tax codes to determine if annuities should become part of defined contribution plans.
The inquiry comes as an increasing number of 401(k) plans and defined benefit plans are offering lump-sum payouts on retirement.
For my part, such a reform would be one way of helping employees keep retirement funds available during their retirement, regardless of how long they live into retirement. The current system of lump sum distributions from 401(k) accounts leaves workers vulnerable to running out retirement income and having to depend of inadequate social security payments. Individual savings? Surely, you can't be serious.
Scotuswiki has links to the briefs filed in the Supreme Court's upcoming case, Lewis v. City of Chicago, which concerns when a cause of action for disparate impact accrues: when the policy is adopted or each time it is used. It's another firefighter case, involving a hiring eligibility list created by a written test, and a disparate impact claim. The City had grouped the passers into two groups based on an arbitrary cutoff score, then hired from the predominantly white higher grouping. At trial, the plaintiffs proved that the grouping was not job related and consistent with a business necessity, but the question on appeal was whether the cause of action had accrued when the list was created or when the City chose who to hire from the list. The Seventh Circuit held that the cause of action accrued when the list was created, following the same line of thought the Supreme Court had used in the disparate treatment context in Ledbetter.
Oral argument is scheduled for February 22, and we'll have more then.
Tuesday, February 2, 2010
The Senate HELP committee yesterday held its hearing on Craig Becker's nomination to the NLRB (go here to see the entire hearing; the Blog of Legal Times and Washington Labor & Employment Wire also both have summaries). There were no major surprises or developments in the hearing, although make sure to catch Sen. McCain's questioning (starts at minute 58:40), which revealed the strength of his opposition to Becker--especially his unwillingness to accept that Becker could be impartial even though the nominee promised for two years to recuse himself from any case that had the SEIU as a party. McCain seemed to say that Becker should recuse himself from any case in which the SEIU had any involvement, not just those to which it is a party. I'm unaware of other NLRB nominees making that broad of a recusal pledge--do any readers know more about this?
The committee will reconvene this morning at 10:00 am, allowing Becker to answer any follow-up questions that Senators may have submitted. We'll see what happens after that.
For those readers who are law professors (including adjuncts and those who teach law courses at business schools or other schools), the BenefitsProf listserv has moved from John Marshall Law School to Marquette University Law School. The list is meant to keep members up-to-date on the latest legal developments and news in the employee benefit and executive compensation area. It is the official listserv of the AALS Section on Employee Benefits and Executive Compensation Law.
Those individuals who were already subscribed to the John Marshall listserv need not do anything at this point. I have transferred all those email addresses to the Marquette BenefitsProf Listserv.
The new email address for the listserv is firstname.lastname@example.org.
If you are not on the employee benefits professor listserv, and would like to be on it, you can either subscribe to list by sending an email to the email address above and just writing "subscribe" in the subject line and leaving the body of the email blank. Alternatively, you can send me an email (email@example.com) and I will sign you up.
Edward Zelinsky (Cardozo) has just posted an essay on OUPblog Health Care and the Massachusetts Senate Election: The Day The Cost Control Died. Here's a summary:
The recent election of conservative Republican Scott Brown to the U.S. Senate seat previously held by Edward Kennedy is pregnant with political implications. Among the casualties of Senator Brown’s victory is any significant attempt by the federal government to control health care costs. The prospects for serious health care cost control were remote before the Massachusetts senate election. They are nil today.
5th Cir.: Janitor Union Wins on Claim That Houston's Parade Ordinances Constitutionally Interferes with Ability to Strike
The case is SEIU v. City of Houston (5th Cir 01/29/2010) and Ross Runkel provides a nice run down on the case:
A union representing over 5000 Houston janitors staged a strike, and applied for permits to conduct parades, marches, and rallies in support of that strike. The city of Houston denied several of the requests, so the union sued - alleging that the city ordinances under which the permit applications were processed violated the First Amendment . . . .
The [Fifth Circuit] noted, "[w]e proceed slightly further in invalidating the City's rules than did the district court but leave most of the City's scheme intact." With respect to reversal, the court concluded that 1) the city's sound ordinance was unconstitutional, to the extent it imposed "[t]he limit of two permits per location per thirty-day period[;]" 2) limitations in the city's parade ordinance, which severely limited the hours of the day when parades could be held, was unconstitutional; and 3) the city's park permitting ordinance requirements were unconstitutional in total.
So an interesting case where constitutional law comes to the aid of a union in vindicating its rights to march on public property to support their strike. Of course, this occurs with the backdrop of not too friendly locale for unions in the first place.