Saturday, February 20, 2010
In 2009, the University of Minnesota Law School became the new editorial home of the ABA Journal of Labor & Employment Law (formerly The Labor Lawyer), the publication of the American Bar Association Section of Labor and Employment Law.
Published since 1985, the journal provides balanced discussions of current developments in labor and employment law to meet the practical needs of attorneys, judges, administrators, and the public. The journal’s circulation includes the 27,000 members of the ABA Section of Labor and Employment Law.
Editorial work on the journal is a faculty-student collaboration. Faculty co-editors are Stephen F. Befort (left) and Laura J. Cooper (right). The student editor this year is Jack Sullivan (center).
Laura writes to tell us that the first issue is out (it includes a very nice article by Sam Estreicher on improving the NLRA) and to invite professors to encourage their students to submit essays for the Journal’s 2010 Student Writing Competition. The deadline for that Competition is June 15, 2010.
Frank Ferris (National Executive Vice President of the National Treasury Employees Union) has forwarded to us an essay discussing a recent FLRA case on the important issue of whether "specific or adequate notice" is part of the initiating party's basic "good faith" bargaining obligation or whether it is only relevant when the employer seeks to establish a union-waiver defense to a charge of mid-term unilateral implementation. Here it is. As always, comments are welcome:
The Federal Labor Relations Authority (FLRA) administers labor laws for over a million organized federal employees. In late January, it decided a question that even the NLRB has not yet faced squarely, i.e., at what moment is a term bargaining obligation created. (Dept. of Treasury, IRS, Washington, D.C. and NTEU, 64 FLRA 426 (Jan. 28, 2010) In the FLRA case, the union charged management with a “bad faith bargaining” unfair labor practice. It alleged management forced it to impasse on ground rules for negotiating a new term agreement (a mandatory subject of bargaining in the federal sector) without giving it specific notice of the management-proposed changes the parties would be bargaining over. An arbitrator heard the ULP case and agreed with the union. When management appealed that decision to the FLRA, the Authority had to decide what was the “moment of conception” for a term contract bargaining obligation? Was the union obligated to bargain before it got specific notice of the proposed term contract changes--whether it was over ground rules or anything else, or could it insist on receiving specific notice before it was obligated to bargain ground rules for negotiating over them? The FLRA chose the former.
Friday, February 19, 2010
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known impact of this watershed case might have a significant impact in the workplace: It may permit employers to hold political mandatory captive audience meetings with their employees.
To eliminate this danger, and consistent with the First Amendment framework for election law issues post-Citizen United, this Article urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act Law, SB 519 (effective Jan. 1, 2010). SB 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers.
Such a federal law would constitute permissible employment standards legislation and also would not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still able to communicate their views about political candidates and parties with their employees as the First Amendment now contemplates, but they will not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.
Another great contribution to Paul's already extensive captive audience body of work.
Patrick S. O'Donnell, a friend of the blog and contributor at Ratio Juris, passes on this sad news that Beth Shulman, labor lawyer, author, and advocate for low wage workers passed away earlier this month. From her obituary,
Shulman was the author of "The Betrayal of Work: How Low-Wage Jobs Fail 30 Million Americans," published in 2003 by New Press.
Marshaling a blizzard of statistics and anecdotes collected on her travels around the country, it argued that janitors, hotel maids, security guards, nursing aides and other low-wage workers have reasonably high skills and intelligence and deserve greater respect.
In the book and numerous public appearances, she also argued that minimum-wage jobs have become minimum-wage careers, dead ends that consign workers to permanent poverty.
"Workers feel like they're doing everything America has asked of them -- working hard, taking pride in their work -- but America has broken its promise to them that if they work hard, they can make a living," she told a reporter in 2004.
The book earned some major notices, including one by Anna Quindlen in Newsweek who called it "a damning new book . . . that should be required reading for every presidential candidate and member of Congress."
Beth had been battling a brain tumor and died of complications from pneumonia at only 60 years old. What a terrible loss to the community.
Thursday, February 18, 2010
Jillian T. Weiss has a new article out in the Journal of Race, Gender, and Ethnicity: Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas.
Here is the abstract:
In a 2001 law review article, I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy,” an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.
This article looks to review the work that has been done since that time. It also focuses on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas impacts this right. Lawrence has made it possible to argue successfully that laws and policies impacting gender autonomy are not rationally related to state interests. This would impact gender restrictions such as those found regarding birth certificates, laws requiring or permitting sex segregation in public facilities, employment or sports, restrictions on crossdressing or transition for youth, in divorce custody situations and in prisons, health insurance exclusions, marriage restrictions, and military service laws.
I would take it a step further and argue (and have argued) that Lawrence recognizes a heightened rational basis review standard that makes all of those gender restrictions by the state outweighed by an individual's sexual privacy right. In any event, be sure to check out this timely piece.
Update: The EEOC now has a press release up with a link to the published NPRM about RFOA under the ADEA as well as background about the proposed rule. Hat Tip: Rebecca Hamburg
Based on the Supreme Court ADEA decisions in Smith v. Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395 (2008), the EEOC will release today a proposed rule defining the “reasonable factor other than age” (RFOA) defense available to employers under the Age Discrimination in Employment Act (ADEA).
The EEOC proposes to amend its existing regulations to meet the new standards in Smith and Meacham. Smith provided for a limited ADEA disparate impact claim. Meacham found that employers have the burden of proving the RFOA defense (that a challenged employment practice causing adverse impact was based on a “reasonable factor other than age” (RFOA)).
You can find the proposed regulation here.
Mike Zimmer just alerted me to the DC Circuit's decision in Shuler v. PriceWaterhouse- Coopers which rejected the causation-only approach I've been pushing with regard to the Lilly Ledbetter Fair Pay Act. For those who haven't followed this in excruciating detail, my Tulane articleargues that the FPA's elimination of timely filing requirements for "discrimination in compensation" reaches any act of discrimination with continuing effects on compensation. This, I contend, is the proper interpretation of the statutory language that allows attacks at any time on "a discriminatory compensation decision or other practice."
The DC Circuit takes a different view. The case involved a plaintiff who was denied a promotion in 1999 and 2000 and who claimed that those decisions had continuing effects on his compensation. Buying into the employer's argument, the court held that "discrimination in compensation" means "paying different wages or providing different benefits to similarly situated employees, not promoting one employee but not another to a more remunerative position." This is pretty much the court's complete reasoning: there is no effort to explain why promotions (which are typically prized precisely because of increased pay) are beyond the scope of the FPA.
Trying to preempt the criticism that this analysis "read[s] 'other practices' out of the statute, Shuler looked to the Ledbetter case itself as "an example of a discriminatory 'other practice,' viz, giving an employee a poor evaluation based on her sex . . . and then using the evaluation to determine her rate of pay." Needless to say, the court doesn't extend its example further and explain why using a discriminatory evaluation to deny a promotion with the concomitant loss of compensation isn't actionable. Nor does it explain the textual or policy basis for its reading, and it fails entirely to look at the legislative history, which addresses this question. I guess that's because it's transparently clear that "discrimination in compensation or other practice" must be related to compensation per se.
I am, of course, disappointed, but I'm not exactly surprised.
Wednesday, February 17, 2010
David Leonhardt, one of the the NY Times' business writers, has a piece on the effect of the stimulus bill on the labor market. His bottom line is that the job situation would be much worse if the bill, which has its flaws, hadn't been enacted. Another point worth noting is that give money to state and local governments is often the most effective and quickest way of stimulating the economy, just as many economists have been saying for a while now:
Imagine if, one year ago, Congress had passed a stimulus bill that really worked.
Let’s say this bill had started spending money within a matter of weeks and had rapidly helped the economy. Let’s also imagine it was large enough to have had a huge impact on jobs — employing something like two million people who would otherwise be unemployed right now.
If that had happened, what would the economy look like today?
Well, it would look almost exactly as it does now. Because those nice descriptions of the stimulus that I just gave aren’t hypothetical. They are descriptions of the actual bill.
The entire article is worth a look, so check it out.
Rachel Arnow-Richman (Denver) has just posted on SSRN her article Just Notice: Re-Reforming Employment At-Will for the 21st Century. Here's the abstract:
This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not (as defenders of the current regime have argued) because it grants workers too much protection vis-à-vis management, but because it grants them too little.
A just cause rule provides only a weak cause of action to a narrow subset of workers – those able to prove their firing was for purely arbitrary reasons. It fails to account for the justifiable, but still devastating, termination of workers for economic reasons, by far the most common reason for job loss today. In this way, the rule is not only inadequate, but anachronistic. Just cause protection is consistent with a mid-twentieth century view of the social contract of employment, which anticipates a long-term, symbiotic relationship between employer and employee in an economy dependent on internal labor markets. Under such a system, the just cause rule gave legal force to parties’ social contract of employment.
In contrast, today’s employers operate principally in an external labor market in which implicit promises of long-term employment have been replaced by implicit promises of long-term employability. Both companies and workers anticipate significant job turnover both in times of economic turbulence, such as the current downturn, in which employers are forced to shed numerous workers due to financial hardship, as well as during economic bubbles, in which companies lay off workers and reorganize for strategic reasons. Given these practices and expectations, the goal of termination law ought not to be protecting individual jobs but rather assisting workers in the inevitable situation of job loss.
To that end, the Article proposes the adoption of a universal “pay-or-play” system of employment termination. Absent serious misconduct, employers would be required to provide advance notice of termination or offer wages and benefits for the duration of the notice period. In contrast to just cause proposals, “pay-or-play” recognizes the necessity and value of employment termination. Rather than encouraging parties to maintain status quo relationships, “pay-or-play” seeks to facilitate transition. It affirms managerial discretion in hiring and firing by eliminating fact intensive inquiries into employer motive. At the same time, it makes real employers’ implicit promise of employability by granting workers a window of income security in which they can comfortably search for the next opportunity.
Tuesday, February 16, 2010
The Work in Progess blog has a post suggesting that unions may be turning their back on the health care bill in response to the apparent defeat of Craig Becker's nomination to the NLRB. In particular, unions are making noises about backing out of the "gold-plated" health care deal; they've said that it's because of the election in Mass. and the narrowing of the health care bill, but the timing came right after Becker's cloture vote. As the post notes, it'll be interesting to see what happens if Becker gets a recess appointment.
Hat Tip: Pat Kavanagh
At the risk of piling on to Margaret Moses's attack in judicial abuses of textualism, I'd like to revisit Serwatka v. Rockwell Automation, which Marcia reported about a month ago. Serwatka held that Gross v. FBL Financial Services applies to the ADA, supposedly by looking at the statutory language.
In Serwtaka, the jury had answered special interrogatories to the effect that (1) plaintiff was terminated by the employer "due to its perception" that she was disabled, but (2) she would have been discharged in any event. The district court viewed this as a classic mixed motives case, which meant that the employer would be liable if 703(m) of Title VII applied, although her recovery would be limited under 706(g)(2)(B). At the Seventh Circuit, the question was whether the motivating factor/same decision anyway analysis applied in ADA cases.
Gross, of course, held that that analysis did not apply under the ADEA, and Gross was a textualist decision -- the reason the Title VII analysis didn't apply was because the 1991 Amendments added the relevant language only to Title VII, not to the ADEA. (OK, I admit that Gross was pretty nontextualist in its treatment of Price Waterhouse, which interpreted identical language in the original Title VII very differently -- Mike Harper's got a nice piece on this in Buffalo).
For a textualist, the question would seem to be answered by the explicit provision in the ADA that incorporates by reference certain of Title VII "powers, procedures, and remedies." While the incorporation doesn't expressly include 703(m) (which didn't exist when the ADA was passed), it does include 706(g), (which, as amended in 1991, limits remedies when a plaintiff makes out a 703(m) motivating factor case).
One might think that a textualist analysis would find that the ADA incorporates Title VII's limitation on remedies, which in turn incorporates 703(m).
One would be wrong. Although the ADA provision "cross-references the remedies [in Title VII], it does not cross-reference [703(m)] which renders employers liable for mixed motive employment decisions." Absent a provision like 703(m) in a statute, Gross dictates that plaintiff must prove determinative factor causation, which, given the jury's findings, plaintiff hadn't done.
It's interesting that Serwtaka used the term "cross-reference" rather than "incorporation by reference." The latter might have suggested a double incorporation by reference, and thus undercut the court's analysis.
By the way, I'm not claiming this is an easy interpetetive question. Not only might the 706(g) "cross-reference" be read in its own terms as inapplicable to the ADA (because it lacks a 703(m to which 706(g) refers), but the ADA actually incorporated by reference the original Title VII (which lacked both 703(m) and 706(g)(2)(B)). The later amendment of Title VII to add the relevant language to 706(g) might not have foreseen the potential ripple effects on the ADA.
But, of course, this latter is a nontextualist argument. And if we're going down that road, we might look at the legislative history of the 1991 Amendments, which suggests that Congress favored a uniform approach across statutes. See John L. Flynn, Note, Mixed-Motive Causation Under the ADA: Linked Statutes, Fuzzy Thinking, and Clear Statements, 83 Geo. L. J. 2009, 2042 (1995) (which Serwtaka cited for its textualist arguments, but not for its discussion of the legislative history).
As Marcia pointed out, the court did reserve the question of whether this analysis might be changed by the ADAAA,
The bottom line is not so much that the Seventh Circuit was wrong, although I think it was (See also Mark Weber's comment to Marcia's original post). Rather, it's that textualism -- at least as applied to complicated legislative interactions -- seems a pretty feeble tool.
PJH Law reports:
Last week, a Jobcentre Plus in Norfolk refused to place an advert for ‘reliable workers’ for fear that it would discriminate against unreliable workers. After a lot of fuss and publicity, the job centre realised (quite rightly) that the wording was not discriminatory. And there the Jobcentre Plus thought it had ended …..
Until this week. Michelle Hilling, the owner of U hairdressing salon in Gosforth, Newcastle, wanted to place an advert in her local Jobcentre Plus for a ‘junior hairstylist’. She was told that this could be read as being aimed at young people, discriminating against older people and therefore should be removed from the ad.
I've heard the phrase "junior faculty" used often in higher education. What is usually meant is "faculty members hired within the last five years or so", just as Ms. Hilling was probably trying signify that she was seeking a stylist with only a few years of experience, who would be willing to work at the low end of the pay scale, and/or who would not be expected to bring an established clientele with him or her. But regardless of what the speaker intended, what was actually said could be interpreted as imposing an age-based qualification.
Monday, February 15, 2010
Margaret L. Moses has posted on SSRN her forthcoming work in the Lewis & Clark Law Review: The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett.
Here is the abstract:
In 14 Penn Plaza LLC v. Pyett, the Supreme Court ignored the principles of stare decisis and justified its disregard of precedent established thirty-five years earlier in Alexander v. Gardner-Denver on the basis of changed judicial methods of interpretation. This article will examine how the Supreme Court, in Penn Plaza, as well as in other decisions, has used the judicial method of interpretation known as textualism, including a version I call "no-text textualism," to reinvent statutes, abandon precedent, and create its own norms in the field of arbitration. Penn Plaza serves as a strong invitation to Congress to adopt new legislation that will overturn inconsistent “legislation” created by the Court. The Penn Plaza decision demonstrates how the Supreme Court has freely disregarded a statute's text, its legislative history, and even the Court's own judicial precedent when fashioning a law of arbitration to suit its policy preferences. In the field of arbitration, the Court's use of textualism has frequently served as a pretext for creating national law and policy that differ substantially from statutory text and from purpose as evidenced by legislative history. Instead, the current law of arbitration represents judicial policies independently crafted by the Court and unrelated to statutes enacted by Congress.
Last week, Judge Linda Reade, chief judge for the Northern District of Iowa, entered an order requiring the EEOC to pay $4.5 million in attorneys fees to defendant CRST, a trucking company that the EEOC had sued in federal court alleging that a large number of female employees had been sexually harassed. Judge Reade based her decision on what she termed a "sue first and ask questions later" policy.
The facts are involved. One employee of CRST filed a charge in 2005, alleging that she had been subject to sexual harassment at CRST, including both hostile environment and quid pro quo claims. The EEOC did not complete its investigation within 180 days and that woman did not seek a right to sue letter. In 2007, the EEOC brought an action against CRST on behalf of the woman and unspecified others. The woman intervened, and as other plaintiffs were found, they were added, and they intervened. At some point, the EEOC identified about 270 women it said had been harassed. It made 150 of them available to CRST for depositions.
Last summer and fall, the district court dismissed claims on behalf of some of the women and entered summary judgment against the claims on behalf of most of the rest and on behalf of the EEOC itself for a variety of reasons--mostly that the EEOC failed to provide sufficient evidence from which a reasonable jury could infer a pattern or practice of tolerating sexual harassment. That order was reported at 611 F. Supp. 2d 918, and claims on behalf of sixty-seven women remained. Ultimately, the court dismissed the action as to those women because the EEOC had not investigated the charges of these women before it filed the action, nor did it attempt to conciliate their claims and avoid litigation. It ended up creating a huge burden on CRST and the court.
The good news for the EEOC was that the fee order (here courtesy of Ross Runkel) didn't grant everything that was requested. CRST sought about $7.6 million.
The course of this case highlights a number of problems with Title VII as it is currently written and enforced. On the one hand, if there are a large number of women who are being harassed at work, the EEOC should be able to do something about that--and it should be able to investigate more broad practices if that's where one charge leads it. As a practical matter, the EEOC's only real enforcement power is to bring an action in federal court. At the same time, as Jason Bent noted here, harassment cases don't fit well into the pattern and practice model, but the individual disparate treatment model doesn't fit really well when you have a case that involves this large number of women at separate locations harassed by separate men. Still it doesn't seem fair for the agency to file a suit and while it has the employer on the hook keep extending the case forever with new people who may not have suffered discrimination until after the lawsuit was filed--at least that was the district court's view. But I'm not sure what the EEOC should have done, either.
I suppose that's what keeps us all in business, but it doesn't seem a very good system.
Hat tip: Victoria Herring
Susan Bisom-Rapp (Thomas Jefferson) has just posted her article, Puzzling Evidence From a Troubled Time: Rethinking State Promotion of Safe Work During the Bush Administration on SSRN. Her abstract states:
Reviews of how federal agencies functioned during George W. Bush's presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard-setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness.
This Article reviews the disparate performances of OSHA and NIOSH during the Bush administration, on the basis of the ideological orientation of agency leadership, each agency's adherence to its traditional mission, and the administration of the agencies' "soft law" efforts. In so doing, the Article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. Review of the divergent records of these sister agencies suggests that when deregulation is ascendant, as during the Bush administration, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts.
This article was presented this past January at a panel on "The Future of OSHA" sponsored by the AALS Section on Labor Relations and Employment Law. Our own Paul Secunda was the organizer and moderator, and other panelists included John Howard (Director of NIOSH), Jarod Gonzalez (Texas Tech), and Jayesh Rathod (American). The panel was excellent, if you weren't there, and all of the presentations will be published later this year in the Employee Rights Employment Policy Journal.
This article is a smaller version of a larger article by Susan entitled, What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy," 55 Wayne L. Rev. (forthcoming 2010).Great stuff!
Our own Jeff Hirsch has posted the latest version of his most recent article, Communication Breakdown: Reviving the Role of Discourse in the Regulation of Employee Collective Action on SSRN. His abstract states,
The problems facing individuals who attempt to act together are considerable. Yet in perhaps no other area are these collective-action problems more acute than the workplace. This reality creates a serious issue for labor law, which guarantees employees the right to engage in collective action. As conditions in the modern workplace increasingly erect barriers to employees’ ability to act together, this right has become threatened. Rather than knocking down these barriers, however, labor law over the last several decades has instead reinforced them. A key factor in this failure is the refusal of the courts and the National Labor Relations Board to recognize the substantial role that discourse plays in promoting employee collective action. Relying on public choice theory, game theory, and psychological research, this Article demonstrates the importance of employee discourse and shows that labor law has not given it the respect it is due. Indeed, employee discourse should be a major player in today’s most high-profile labor law debates—including the Employee Free Choice Act and employees’ right to use e-mail and the Internet at work—but, to date, it has been rarely acknowledged. Accordingly, this Article argues that employee discourse must be given far more consideration and protection, as the failure to do so will undermine even the most ambitious labor reforms’ ability to expand employee collective action.
I can't wait to read it.