Friday, February 26, 2010
Last week, AFGE petitioned the FLRA to hold an election to represent TSA airport screeners. This would be a big election, as there are about 40,000 screeners. The catch is that these employees currently lack the right to collective representation under rules of the previous administration. The petition, therefore, may be an attempt to get the current administration to speed up the process of extending labor rights to screeners. A twist, however, is that there may also be a battle between unions, as both the AFGE and the NTEU have expressed interest in representing the screeners. Both unions already have thousands of employees signed up as members (the AFGE claims it's got 13,000). But this battle will be minor compared to the political war over whether the screeners should even have the right to organize.
As the Senate was preparing to further extend unemployment benefits as a part of a larger package today, Sen. Jim Bunning single-handily killed the measure. He insisted that the Senate must agree first how to pay for the package, even if it means that over a million unemployed workers could lose their benefits if the Senate can't get it passed in the next few weeks. That's unlikely, as the Senate can hold a recorded vote next week (this was a roll-call, which any one Senator can block).
Identifying how Congress will pay for something (e.g., PAYGO) is obviously a significant issue, but why he picked this time and this bill to hold the line (as opposed to, say, anytime during the eight years that Bush was president) is perplexing. No doubt not running for re-election helps. Also, he was apparently miffed that work in the Senate prevented him from watching the Kentucky-South Carolina basketball game.
Mark Weber (DePaul) has posted on SSRN his new article: Unreasonable Accommodation and Due Hardship.Here is the abstract:
This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes:
(1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as "unreasonable accommodation" or "due hardship."
(2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; it is also subject to increase over time.
(3) The accommodation duty entails mandatory departure from neutral workplace rules, effectively creating a preference for workers with disabilities, but one not to be confused with the affirmative action concept found in other anti-discrimination regimes.These conclusions are in some respects consistent with, and in other respects quite inconsistent with, leading judicial interpretations, including the single Supreme Court case on accommodations in employment, U.S. Airways v. Barnett. The Article will suggest avenues by which courts may be led back to the correct interpretation of reasonable accommodation by looking to the text of the statute and its legislative history, interpretations by the enforcing agency, judicial construction of analogous language elsewhere in the ADA, and precedent from other jurisdictions.
For twenty years, judicial and scholarly attention focused on who is a person with a disability entitled to the protections of the ADA. Narrow readings of coverage kept many cases with accommodations claims from reaching decision on the merits. Recently, Congress enacted the ADA Amendments Act, vastly expanding the range of covered individuals. After the Amendments, attention will turn to what accommodations employers must provide. This Article is the first to return to the original sources to determine what Congress required and to analyze both Barnett and the lower court cases in light of that understanding.
I was lucky enough to review an earlier draft of this piece. And like all of Mark's scholarship, he is one step in front of the rest of us in considering issues that impact people with disabilities in employment and education. This a must-read for anyone who cares about where the disability law debate goes after the enactment of ADAAA.
According to an article by Steven Greenhouse in today's New York Times, the Obama Administration plans to use federal procurement policy to promote better wages and benefits for workers, as well as better environmental policies. From the article,
By altering how it awards $500 billion in contracts each year, the government would disqualify more companies with labor, environmental or other violations and give an edge to companies that offer better levels of pay, health coverage, pensions and other benefits, the officials said.
Because nearly one in four workers is employed by companies that have contracts with the federal government, administration officials see the plan as a way to shape social policy and lift more families into the middle class.
The article reports that Republican lawmakers see this as a gift to organized labor and object that it would drive up federal costs, disproportionately weed out small busineses, and be too hard to apply.
It doesn't seem much different to me than the welfare reform policies of the 90s. By using work as the way to get more dollars into people's pockets and better safety-net-type benefits, the burden on other parts of the federal budget (Medicare etc.) would be less. That sounds like good economic policy. Getting the most for your money does not necessarily mean buying the thing with the lowest up-front pricetag. This seems to get at more of the costs that work, production, or simply life may entail, but may be hidden by the system, costs like health and safety. And we're not even talking about wholesale regulation of the private sector, using private employment generally to reach these goals. Federal contracting is really only one step away from the federal workplace itself.
Anne Marie Lofaso (West Virginia) has just posted on SSRN her article (forthcoming 14 Employee Rights and Employment Policy J.) Talking is Worthwhile: The Role of Employee Voice in Protecting, Enhancing, and Encouraging Individual Rights to Job Security in a Collective System. Here's the abstract:
In this tribute to Clyde Summers - my teacher, my mentor, and my former employer - I use notes that I took during labor law class (in the spring semester 1989) and also draw upon memories of our numerous conversations to show the extent to which Professor Summers influenced my thinking about job security. “Talking is worthwhile” - or so preached Summers. Using that idea as my springboard, I trace the various incarnations of the law’s treatment of job security in circumstances of economic distress. In addition to providing unemployment or other post-termination benefits, I demonstrate that the law can have various pre-termination roles that range from least to most cooperative between the parties. These roles include the following: do nothing to notify workers of an impending layoff to furnish workers with information relevant to an impending layoff to compel employers to consult or bargain with employees’ representatives with a view to(ward) reaching agreement to compel the parties to co-decide what to do in these situations. After comparing United States federal law (which in many cases mandates advance notification, information exchange, effects bargaining, and sometimes even bargaining) with the European Union’s collective redundancies directive (which compels pre-decisional consultation among the parties with a view to reaching agreement), I reason why “talking [before the layoff] is worthwhile.” I conclude by showing how my preferred solution - to extend mandatory, pre-decisional bargaining (or at least consultation) over mass layoffs and plant closings to nonunionized workers - effectuates national labor policy as Professor Summers understood it. My simple solution - to give employees voice - also empowers workers to take control of their destinies by helping them to save their jobs and the businesses that employ them when both worker and firm are most vulnerable. Accordingly, my solution both dignifies workers and encourages them to become autonomous agents of their working lives - foundational values in a human-rights approach to labor and employment law.
Wednesday, February 24, 2010
Hat tip to CCH Technical Answer group for an update on the status of the Milwaukee Sick Pay Ordinance that was passed by referendum in November 2008, only to be invalidated by a state trial court judge. According to the posting, the Milwaukee paid sick leave case has now been referred to state supreme court:
On February 18, 2010, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to take up the constitutionality of Milwaukee’s paid sick leave mandate.
In June 2009, Milwaukee County Circuit Court Judge Thomas Cooper ruled that the city’s paid sick leave ordinance, which provided up to nine paid sick days per year based on the number of hours worked and the size of the business, was “invalidly enacted and unconstitutional.” (Metropolitan Milwaukee Assoc of Comm v City of Milwaukee, Milwaukee County Circuit Court, No 08cv018220, June 12, 2009). 9to5, the National Association of Working Women, appealed Cooper’s ruling. The supreme court has been asked to decide whether the ballot question put before the voters of the City of Milwaukee complied with the statutory requirement that it contain “a concise statement of [the ordinance’s] nature” - whether voters were informed of the contents of the ordinance . . . .
Nearly 70 percent of . . . voters approved the referendum for paid sick leave in the November 2008 election.
Marcia has written before on the ordinance. I personally think the law was properly enacted and constitutional. It will be interesting to see whether the Wisconsin Supreme Court takes the case.
Bent: Lewis v. City of Chicago Highlights the Difficulty of Applying Title VII’s Charge Filing Rules in Systemic Cases
Lewis v. City of Chicago Highlights the Difficulty of Applying Title VII’s Charge Filing Rules in Systemic CasesOn Monday, the Supreme Court heard arguments in Lewis v. City of Chicago, and I was fortunate enough to have the opportunity to attend. Below is a description of the case and my takeaway from the argument.
Some have described Lewis as the “flip side” of the Ricci case. As to the underlying facts that could be a fair description. But in Lewis the Court is considering only a question about the timeliness of an EEOC charge of disparate impact discrimination under Title VII. The legal question for the Court is actually more like Ledbetter than Ricci. The question presented in Lewis is when the charge filing period begins to run in a disparate impact case where the challenged test score cutoff (which the City now admits had an unlawful disparate impact on black candidates) is used to make several rounds of hiring over a number of years.
The City administered a written test in 1995 to over 26,000 applicants for firefighter jobs. A score of 65 or above indicated that the candidate was fully qualified to be a firefighter, while those scoring 64 or below failed the exam. Because of the high number of applicants scoring 65 or above, the City – against the advice of the test developer – further divided the passing grades into two groups: those scoring 89 or above were labeled “Well Qualified,” and those scoring between 65 and 88 were labeled “Qualified.” The City does not dispute on appeal that this additional cutoff at 89 had an unlawful disparate impact on black applicants. In other words, 89 was an arbitrary cutoff that reduced the percentage of black applicants eligible for selection while having no important connection to whether the “Well Qualified” group was actually any more qualified to be firefighters.
The City then sent letters to those in the “Qualified” group informing them of their classification. The City argues that receipt of this letter was the event that triggered the 300 day charge filing period, so the wording is important:
Due to the large number of candidates who received higher scores and were rated as “Well Qualified,” and based on the operational needs of the Chicago Fire Department, it is not likely that you will be called for further processing. However, because it is not possible at this time to predict how many applicants will be hired in the next few years, your name will be kept on the eligible list maintained by the Department of Personnel for as long as that list is used.
The City then made hiring decisions by drawing randomly from only the “Well Qualified” group for further evaluation, including physical abilities tests, drug tests, and background checks. This process was repeated, using the same “Well Qualified” group, for ten rounds of hiring between 1996 and 2001. Finally, in the eleventh round of hiring the City had exhausted the “Well Qualified” group and filled out the class by drawing randomly from the “Qualified” group. The City continued to hire from the “Qualified” group through 2007.
The question is whether a black applicant in the “Qualified” group was required to file charges within 300 days of receiving the City’s letter, or within 300 days of any time the test score cutoff was “used” – i.e., within 300 days of any given round of hiring between 1996 and 2001 in which the “Qualified” pool was not included in the random draw and the candidate was not hired.
There are some interesting statutory interpretation questions that several Justices focused on, and that could very well be the basis for the Court’s ruling, but I am going to skip ahead to the policy arguments. Lewis highlights some problems with applying the 300 day charge filing rule in systemic discrimination cases. The City’s position would require the “Qualified” candidates to file charges within 300 days of receiving the letter quoted above – before they even know exactly how they will be affected by the City’s hiring plan. This could be a bad policy result, as Chief Justice Roberts suggested at one point in the argument. The City responded that, at the very least, the “Qualified” candidates knew that their hiring would be delayed relative to the “Well Qualified” group and that they should have filed charges based on their injury from this delay. This might be enough to convince a majority of the Court, but is it good policy? Do we really want everyone who has good reason to believe they may still get hired, just not as quickly as others, to initiate EEOC proceedings?
It also seems to ignore the realities of the situation. Congress intended that the EEOC charge filing process could be navigated by laypersons, not just attorneys. Would individual applicants, without consulting attorneys, think it necessary to quickly file EEOC charges based on receipt of the letter quoted above? Or would they wait to be told they were not actually selected? After all, the letter indicates that the candidate is “Qualified” and will be kept on the eligible list.
In my view, the larger problem is that Title VII’s short filing deadline can make sense for individual “discrete acts” of discrimination, but is often just plain inappropriate for systemic discrimination cases. Lewis demonstrates the difficulty of applying the short deadline in cases where an employment practice with a systemic disparate impact is announced and then continues to be used in hiring decisions for years. A related problem occurs where a systemic disparate treatment violation occurs over time, and can only be identified by looking at several years worth of the employer’s hiring, promotion, or firing data. I discuss that problem in more detail here. [LINK: http://www.lawrecord.com/files/bent.pdf]
Whichever way the Court rules in Lewis, the result will be imperfect and the underlying problem will remain. Congress might elect to apply a band-aid for this particular situation, as it did for Ledbetter, but the better course would be a complete overhaul of the charge filing rules, possibly including a liberal discovery rule. As Professor Sullivan points out in his Tulane article [LINK: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1418101], the charge filing rules have generated an “enormous number of technical questions.” Lewis is only the latest example, and it will not be the last.
The Senate has just approved a $15 billion jobs bill, by a 70-28 vote. Among other things, the bill would give a one-year exemption on payroll taxes for any new hires who had been unemployed for at least 60 days, accelerate various tax write-offs, and increase public works spending. The House, which passed a broader jobs bill, must now decide whether to pass the Senate version or seek reconciliation. Either way, it certainly looks like something will be able to pass at this point.-JH
Peggy has been at Iowa since 2003. Before that, she taught at Chicago-Kent, and before that, she was a visiting fellow at Cornell’s School of Industrial Labor Relations.
She joins an all-star labor/employment cast at Wash U.: Dean Kent D. Syverud, Marion Crain, Pauline Kim, and Laura Rosenbury. Another coup for Wash U.
Grunewald has been at W&L since 1976, and has taught and written widely in the areas of labor law, employment discrimination, employment law, and administrative law. He served as associate dean from 1992 to 1996 and as interim dean during the 1999-2000 academic year.
Stephen Blakely (EBRI) has just posted on SSRN an excellent summary of the challenges of employer-based health care. The article is Employers, Workers, and the Future of Employment-Based Health Benefits. Here's the abstract:
This paper summarizes presentations at EBRI’s 65th biannual policy forum, held in Washington, DC, on Dec. 10, 2009, on the topic, “Employers, Workers, and the Future of Employment-Based Health Benefits.” The forum brought together a wide range of economic, benefits, management, and labor experts to share their expertise at a time when major health reform legislation was being debated in Congress. The focus: How might this affect the way that the vast majority of Americans currently get their health insurance coverage? Most people who have health insurance coverage in the United States get it through their job: In 2008, about 61 percent of the nonelderly population had employment-based health benefits, 19 percent were covered by public programs, 6 percent had individual coverage, and 17 percent were uninsured. One point of consensus among both labor and management representatives: Imposing a tax on health benefits is likely to cause major cuts in health benefits and might result in structural changes in the employment-based benefits system. A common disappointment voiced at the forum was that the initial effort to reform the delivery and cost of health care in America gradually became focused on just financing and coverage of health insurance. The ever-rising cost of health insurance affects different employers and workers in different ways--with small employers and low-wage workers being the most disadvantaged. Small employers, if they offer health benefits at all, pay proportionately more than large employers for the same health coverage. While large employers tend to express continued commitment to health benefits, small employers see themselves strongly disadvantaged by the current system. Consultants report many employers privately want to drop benefits to control costs, but realize there are risks to doing so and none wants to be first. Employers express strong interest in wellness and disease management programs as a way to control costs, even though some experts say there is no evidence these work. Consumer-driven health plans are expected to continue their slow rate of growth.
Tuesday, February 23, 2010
Employers frequently provide separate representation to employees in legal proceedings, especially when the proceedings are criminal in nature. But "provide" typically means "pay for." A firm in NJ went a step further and, in the context of a NJ Attorney General criminal fraud investigation, actually identified the attorneys that its employees could use at company expense and entered into retainer agreements with them. It then notified the employees that they could consult these attorneys without charge. -- or retain counsel of their own choosing if they were willing to pay themselves. Plus, the employer reserved the right to cease paying the attorneys at any time.
As might be expected, the AG objected to the whole arrangement and moved to disqualify the counsel. She lost -- sort of. That is, the attorneys were not disqualified, but the New Jersey Supreme Court conditioned such arrangements on six principles which should minimize the potential for abuse.
The case was In re State Grand Jury, in which the court looked to RPC 1.8(f) (governing when a non-client can pay at attorney to represent the client), 1.7(a) (conflicts of interest), and 5.4 (not allowing anyone but the client to direct an attorney's professional judgment) to fashion its rule.
While the opinion is interesting in a number of respects, it's likely to be most important in two regards. First, it disapproved of the "take it or leave it" nature of the company's actions. In the future, employees will have to have the right to select their own counsel, which the company will then pay for, Second, the court disapproved of the employer's reserving the right to prospectively stop paying the attorney's lawyers at its discretion. Rather, such action would be subject to court approval -- and the opinion is clear that the mere fact that the employer does not like the turn an employee's representation has taken will not be sufficient grounds for terminating payments. Similarly, the counsel could not withdraw from the representation without court approval.
The court was clearly trying to lift any employer thumb on the scale of the employee representation in these scenarios. It will be interesting to see if the result is less willingness of employers to provide legal counsel or whether the incentives in the system are strong enough to push them to continue. And, of course, this case does not address the broader question of indemnification of employees who find themselves defending actions taken on behalf of their employer.
BNA's Daily Labor Report (subscription required) has a summary of the oral argument in Lewis, the case looking at when the statute of limitations run in a disparate impact case. I haven't read the transcript yet, but based on reports it looks like the plaintiffs may have a shot (Jason Bent, who did read it, seems to think so as well). In particular, the result may be an adoption of the discovery rule, in which the plaintiffs win because they had no reason to believe that being classified as qualified rather than well qualified definitively knocked them out of the running.
This is just a guess, of course, so stay tuned.
Monday, February 22, 2010
Last Wednesday, Wilma Liebman, Chairman of the NLRB gave a great speech at Washington University (St. Louis) on the future of labor law. It was part of the school's revamped Center for the Interdisciplinary Study of Work and Social Capital, headed by Marion Crain. I was at the speech and enjoyed it tremendously.
Chairman Liebman touched on politics, but also touched on a more important issue: the lack of innovation caused by our collective failure to revise our labor law in over sixty years. The nature of work has changed dramatically since that time, yet our policies have not. Chairman Liebman talked a bit about the large volume of work that she and the other member of the Board, Peter Schaumber, have managed to accomplish. Incredible given the length of time the Board has been so understaffed. And related to that, she highlighted the danger that if Congress and the President cannot move forward relatively soon on the appointments of the other members, she may be not only the Chairman, but also the entire Board: Peter Schaumber's term expires in August.
Hat tip: Sharon Steckler
Three students separately came to see me last week because they were in the running for an unpaid internship at a labor and employment firm in Manhattan. They had all been invited to an "informational session" about the internship, which involves six weeks of unpaid work at the firm. To be clear, Seton Hall doesn't currently have externship program with this (or any other) law firm.
Given that the firm does labor and employment law, it had to have been aware of the fair labor standards act issues, but was probably also aware of how these can, arguably, be dodged by having a law school offer credit as part of a formal externship program. Check out David Yamada, The Employment Law Rights of Student Interns, 35 Conn. L. Rev. 215 (2002), for more on this topic.
But the firm had not contacted Seton Hall about such an externship. So I went to its website, where I learned that the program has been in existence for 10 years. It started "at the request of one New York law school" but now involves students from eight such schools. Presumably, Seton Hall would be the ninth. There are 20 interns each summer. .
Now, I have no way of knowing about the quality of the internships as an educational experience. I am admittedly a little suspicious that the firm didn't reach out to our externship supervisor before inviting (through resume referral) our students to the informational session -- but maybe that's just a glitch on one side or the other.
In any event, I told the students who asked me about the firm that I saw no benefit to students in any law school awarding credit in circumstances such as this. Our current externships are almost all with public, or at least, non-profit entities. I'm not clear how,if we approved this externship, we would be able to say no to other firms. In pretty short order, it seems to me, the market for paid employment for law students would dry up -- both in the summer and during the school year. There's been some talk about the law biz moving to an apprentice model, and this would be a giant step in that direction.
Now maybe I'm just out of the loop and this has been going on for years -- obviously, at least at some level, it has for this firm. Plus, record companies have been using this strategy for a while (they are the only exception to Seton Hall's bar of externships with for-profit entities). Finally, I may be over-rating the value of student assistance -- law firms typically claim that even first year associates don't pay for themselves, so why should we expect even free student help to be of much value? In that case, the incentives would not lead to a race to the bottom and only education-minded firms will offer such programs.
But is this something we should be abetting? Any comments -- both on what's going on out there and the what the law school response should be -- would be appreciated.
Today, the United States Supreme Court is scheduled to hear oral argument in Lewis v. City of Chicago (opinion by Judge Posner below from the 7th Circuit).
Ross Runkel's Law Memo provides this summary of the case:
The City administered a written test to firefighter job applicants in 1995, and notified applicants of the results at the end of January 1996. Plaintiffs filed an EEOC charge on March 21, 1997 claiming that the test had a disparate impact on black applicants and was not a valid test of firefighting aptitude. The charge was filed more than 400 days after the plaintiffs were notified, but within 300 days of the City's beginning to hire applicants. The trial court ruled that each hiring was a fresh violation of Title VII, so the plaintiffs' suit was timely.
The 7th Circuit reversed, finding that "discrimination was complete when the tests were scored" and "was discovered when the applicants learned the results." Therefore, the EEOC charge was not filed on time. The 7th Circuit rejected plaintiffs' "continuing violation" argument and the argument that the running of the statute of limitations should be tolled under that doctrine of equitable tolling.
The issue should come down to whether you start measuring the statute of limitations in such a case from the time the test is scored or when non-plaintiffs start to get hired as a result of the test. Or, put differently, whether a different SOL standard applies to disparate impact cases than to disprate treatment ones. Along the way, it will be interesting to see if the Court more generally adopts the "discovery rule" (the SOL starts to run when the plaintiffs figure out their interests have been affected) for both DI and DT.
Judge Posner applied the well-known Ricks case to say the SOL starts when the plaintiffs discover they had not been selected for the firefighter position. Ricks involves a university teacher who was denied tenure, but did not lose his job until the subsequent terminal year of his contract had concluded. The 7th Circuit reasoned that just like the SOL started to run in Ricks when the decision not to renew was made, so too the SOL in the Lewis DI case started to run when the firefighters found out they were not selected for the job, not when other applicants actually were selected.
I am not clear why the Court took certiorari on this case. Posner and his fellow panelists seemed to come out the way I would suspect a majority of the Court to come out. I guess we'll just have to wait and see; maybe oral argument will explain more to us.
Ruben Garcia (California Western) brings to our attention that he and a few other workplace law profs will be presenting at the "Race, Immigration, and the Law of the Workplace" interdisciplinary conference at Princeton University this coming week. It is sponsored by the University of California-San Diego (UCSD) Center for Comparative Immigration Studies and Princeton's Program in Law and Public Affairs.
From the website on the conference:
The objective of this conference, which will take place on February 26 and 27, 2010 at Princeton, is to bring together scholars engaging in the intersections of law, immigration, race and the workplace. Mass immigration has had a huge impact on labor, on citizenship, on understandings of race and ethnicity, and on American politics. The law has been evolving as well. We will bring together a group of social scientists and legal scholars in these areas to create a dialog among those whose interests intersect but for professional reasons rarely interact. This conference is co-sponsored by the Princeton University Program in Law and Public Affairs, where it will be held.
In addition to Ruben, other participating workplace law prawfs include: Jennifer Gordon (Fordham), Deborah Malamud (NYU), and Robin Lenhardt (Fordham). If you are in the area, looks like a wonderful program, so check it out!