March 6, 2010
Reply Brief in New Process Steel
The employer's reply brief in New Process Steel has now been filed and you can click on the following link to Download New Process Reply Brief. You can get the opening brief here, and the NLRB's brief here.
Unemployment Rate UnchangedThe Department of Labor released its February unemployment figures yesterday, and the rate remained unchanged from the previous month at 9.7%. There were still 36,000 job losses in February, but that was a big improvement from the previous year's 650,000 job losses and beat economists' projections. However, 40% of the unemployment have been that way for at least six months and the underemployment rate ticked up slight to 16.8%. More evidence that we may be slogging through the (hopefully) bottom and may start to see more improvement later in the year.
WARNS Institute June 24-25 at Louisville
Ariana Levinson (Louisville) sends us a hold-the-date note for the annual Warns Institute. The 27th Annual Warns Labor & Employment Law Institute will be held on June 24 and June 25 at the Galt House in Louisville, KY.
South Dakota Ballot Initiative Would Preempt EFCA
Dennis Nolan sends along news that both houses of the North Dakota Legislature have approved a ballot initiative that, if approved by voters in November of this year, would require secret-ballot voting in union elections. The bill ostensibly would preempt the card-check provision in the currently pending Employee Free Choice Act. My recollection of the Supremacy Clause, however, is that preemption works the other way.
Garden on Union Campaigns as Constitutionally Protected Speech
Charlotte Garden (Georgetown) has just posted on SSRN her article Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech. Charlotte presented this article at the Seton Hall Labor and Employment Scholars Forum in January. Here's the abstract of this timely article:
Corporate targets of union “comprehensive campaigns” have increasingly responded by filing civil RICO lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained and inconsistent treatment of much labor speech as less worthy of protection than civil rights or commercial speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, I argue that labor speech - which plays a unique role in civil society - should be on an equal footing with civil rights speech. Thus, even if union advocacy is somehow extortionate, the First Amendment should trump civil RICO enforcement, with two limited exceptions: speech that is actually malicious; and speech that threatens imminently to force an employer to choose between breaking the law and suffering significant economic harm or shutting its doors altogether.
March 5, 2010
Women in the International Labor Market
The LERA Listserv, through the Cornell Institute of Workplace Studies (IWS) brings to my attention a new report from the International Labour Organization (ILO) on: Women in labour markets: Measuring progress and identifying challenges [5 March 2010].According to the IWS:
This report uses labour market indicators to measure progress or lack of progress towards the goal of gender equality in the world of work and identify where and why blockages to labour market equity continue to exist.The report focuses on the relationship of women to labour markets and compares employment outcomes for men and women to the best degree possible, given the latest available labour market indicators from the ILO Key Indicators of the Labour Market. The main findings highlight a continuing gender disparity in terms of both opportunities and quality of employment. There have certainly been areas of improvement particularly in raising female participation but, in general, the circumstances of female employment – the sectors where women work, the types of work they do, the relationship of women to the job, the wages they receive – bring fewer gains to women than are brought to the typical working male.
Here is the press release from today: More women choosing to work, but gender equality remains a long way off.
Secunda on Captive Audience Meetings
Paul Secunda (Marquette) has just posted on SSRN his article The Contemporary "Fist Inside the Velvet Glove": Employer Captive Audience Meetings Under the NLRA. The article is for the Florida International University Law Review symposium Whither the Board? The National Labor Relations Board at 75 (we previously blogged about that Symposium here). Here is Paul's abstract:
One of the more effective anti-union techniques used by employers during labor organizational campaigns is the holding of employee captive audience meetings. Employees, in the midst of deciding whether or not to join a union, are compelled to attend an assembly where management has a one-way conversation with them about the evils of unionism. These meetings occur during working hours, when the employer is best able to exert its economic authority over employees and to play on fears of job loss if employees vote for the union.
While employees are free to leave these meetings in the formal sense, they may only do so at the peril of losing their jobs. Further, employers can exclude pro-union employees from such meetings and can fire employees for attempting to ask questions. When one also considers that unions generally lack access to employer property to disseminate pro-union messages, one begins to understand the imbalance of this workplace dynamic. What is most amazing to those who hear about the captive audience meeting tactics for the first time is that such actions by employers are not only tolerated in the United States, but have been considered lawful under the National Labor Relations Act for over sixty years.
Based on employee free choice, the conduct/speech distinction in labor picketing cases, and the threadbare nature of NLRB precedent in this area, this Article contends that the Board should return to its Clark Bros. doctrine and make employer captive audience meetings a per se violation of Section 8(a)(1) of the NLRA. No need exists for statutory amendment of the NLRA because the current language of the Act, even in light of the Section 8(c) employer free speech provisions, readily supports this alternative interpretation. Without the proverbial gun to their heads, employees will again be able to exercise free choice in deciding whether they wish to be represented by a labor organization.
This is an excellent follow-on to Paul's previous articles Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States and Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment.
March 4, 2010
Adding Value(s) to Employee Handbooks
Michael Maslanka, over at Work Matters, explains that
workplace cultures of the future will focus on autonomy and not rules. My modest suggestion for improving employee handbooks: Explain why a rule or policy is in the handbook and incorporate company values into the explanatory statement. Look at the at-will rule: An employee can leave anytime he wants, and an employer can let the employee go anytime it wants. If the company is an entrepreneurial one, add a statement tying the rule to this company value: The company and employees must be nimble, free to seize opportunities that come along. Explain that the reason for an anti-harassment policy is that employees can't reach their full potential if they are in a hostile work environment.
BLS to Eliminate Labor Comparisons Program
Al Goldman passes along this news from the Washington Post that the Obama Administration is planning to eliminate the International Labor Comparisons program which, according to the article, may be the most reliable source for international comparative data respecting such things as labor costs, unemployment rates, productivity and the like.
March 3, 2010
Solis Hints at Becker Recess Appointment
Today, at the AFL-CIO annual meeting, Secretary of Labor Hilda Solis hinted at an impending recess appointment of Craig Becker to the NLRB. It had been looking like that might not happen, but unless Solis was trying to tick off unions even more, it sounds like the Administration is going for it (perhaps related to the need to keep labor support for health care). According to the AP:
Solis told AFL-CIO officials at their annual meeting Wednesday there will soon be positive news on the long-stalled nomination of union lawyer Craig Becker.
Solis then told reporters the unions will be "very pleased" with how the issue is resolved.
Hat Tip: Patrick Kavanagh
March 2, 2010
Favorite Labor/Employment Blogs
- Adjunct Law Prof Blog,
- Charlies Train Law blog
- Connecticut Employment Law Blog
- Daily Developments in EEO Law
- Delaware Employment Law Blog
- Doorey's Workplace Law Blog
- Evil HR Lady
- Gruntled Employees
- Human Resource Blog
- Jottings By An Employer's Lawyer
- Lawffice Space
- Manpower Employment Blawg
- NY Labor & Employment Law Report
- Ohio Employer's Law Blog
- pjh law
- Retirement Plan Blog
- Warren & Hays Employment Law Blog
- Washington [DC] Labor and Employment Law Wire
- The Word
- Work Matters
- World of Work
Students aren't the only ones who can post inappropriate material on facebook and other social media sites. According to the article Not So Private Professors in Inside Higher Ed, a sociology professor was
placed on administrative leave last week after a student reported two Facebook postings that some have interpreted as threats. On Jan. 21, Gadsden wrote “Does anyone know where to find a very discreet hitman? Yes, it’s been that kind of day …” Another post in the same vein came a month later, as Gadsden opined: “had a good day today, DIDN’T want to kill even one student :-). Now Friday was a different story.”
What's good for the goose is good for the gander -- what's true for students is also true of professors: don't put anything on Facebook that you wouldn't want to see on the front page (er, first screen) of a major newspaper.
Developments in NAACP v. North Hudson
Apparently, developments have overtaken my post of a couple of hours ago. Although the issue remains a live one, the Third Circuit yesterday sent the North Hudson case back to the district court. http://www.ca3.uscourts.gov/opinarch/091698np.pdf. The purpose of the remand is the "implications" of Ricci, which was handed down after the district court opinion. Although the opinion recites the facts and holding of Ricci, it provides no real hint of what the court thinks those implications might be.
And, no, I don't know why the blog cropped my picture; I'm trying not to take it personally!
Hispanics vs. Blacks in the Disparate Impact Wars
There has been some commentary on the possible effects of Ricci where different racial minorities' interests may come into conflict. Kerri Stone explores an aspect of this in terms of transferred intent for disparate treatment cases on her blog on the Ricci Glitch and an imminent article in 55 Loyola,
But another twist is the effect of competing impacts on two minorities, a question that might be reached by the Third Circuit, which is hearing an appeal from NAACP v. North Hudson Fire & Rescue. 255 F.R.D. 374 (D.N.J. 2009), North Hudson is a regional fire department serving five municipalities in Hudson County; the overall population of the five towns is majority Hispanic.
The issue this time is not the civil service test. Rather, North Hudson has a policy requiring that employees be residents of one of its five towns. The district court preliminarily enjoined this policy in a suit brought by the NAACP. The claim was not exactly a surprise -- because of dramatic residential segregation such policies often have a disparate impact on blacks, and the NAACP had previously prevailed in Newark Branch, NAACP v. Harrison, 940 F.2d 792 (3d Cir. N.J. 1991), challenging the town of Harrison's residency requirement. (As I write this, sitting in my office in Newark (by the 2000 census, 53% black, 26% white), I can look across the Passaic River (maybe 75 yards wide at this point) and spanned by numerous bridges) at the town of Harrison (66% white, 1% black,). Another successful effort was NAACP v. City of Bayonne, 134 F.3d 113 (3d Cir. N.J. 1998), which has an interesting twist in that, after the court ordered elimination of the residency requirement, hiring of African Americans actually went down.
Anyway, the NAACP won against North Hudson in the district court -- there was a disparate impact on African Americans and no business necessity/job relation. The court enjoined NHRFR hiring from its list of those who passed the state civil service test andlived in North Hudson. The fire district could hire only from the Tri-County list, which included all Hudson County and adjoining Essex and Union Counties. Needless to say, that would include many more African Americans and, since rank-ordering was the indicated method of hiring, would result in a substantial reduction in the chances of North Hudson residents being hired.
At this point, things took an interesting turn with six Hispanics residents of North Hudson moving to intervene on the side of the NHRFR. Each claimed to have passed the state firefighter test and to be on the North Hudson's original list of eligible candidates, i.e. those who lived in the five North Hudson municipalities. They claimed that the preliminary injunction would prejudice them -- for example, one intervenor's rank would drop from 25 (on the North Hudson list) to 189 on the Tri-County list.
While the district court granted intervention, it refused to dissolve its preliminary injunction, and both the North Hudson and the individuals appealed.
Before the 3rd Circuit, the five Hispanic defendants do not seem to be attacking the Tri-County list on the grounds that it had a disparate impact on Hispanics. That despite expert testimony submitted by North Hudson that Hispanics would suffer a decrease in positions (the expert testified that blacks would increase their representation somewhat, but the primary beneficiaries would be non-Hispanic whites). Rather, they argue that Ricci is a change in law that requires a different result/
This seems misplaced since the district court concluded not only was there a disparate impact but that the residency requirement wasn't job-related, which would seem to make Ricci inapposite. But it's not so clear from the district court's opinion that North Hudson tried to prove business necessity of its residence requirement, If it didn't, perhaps the intervenors could attempt to do so -- although this seems a stretch on its face and there is the hovering question of whether the six individuals should be bound by what North Hudson did given their late intervention under 2000e-2(n).
Suppose, however, that the intervenors claimed that the Tri-County list shouldn't be implemented because it has a disparate impact on Hispanics? If true, where does that leave the case? Of course, for policy reasons we might prefer the larger geographic area for reasons other than race --- assuming the validity of the test and the rank ordering, North Hudson is presumably getting better firefighters when it hires from the larger list than from the smaller one. But where exactly does that consideration fit into disparate impact analysis?
March 1, 2010
Underemployment By The Numbers
Catherine Rampell, at the New York Times' Economix, has made a couple of recent posts on underemployment figures in the U.S. (including unemployment, as well and those workers who would otherwise work, but are no longer actively looking for jobs, and workers who are working less hours than they would like). In one post, she notes that the underemployment rate has fallen nationally to 16.5%, largely because employed workers--especially part-time ones--are working more hours. In the second post, she provides a graphic showing underemployment figures for each state (with California, Michigan, and Oregon have the worst numbers).
Zelinsky v. COLAs
... that we designate 2011 as the No COLA year.
Under this proposal, in 2011 no cost-of-living adjustments would be implemented in the federal budget or tax law. When COLAs resume for 2012, any inflation which occurred in 2010 will be permanently disregarded. In a spirit of universal sacrifice, the suspension of COLAs in 2011 would be across-the-board.
Thus, on the tax front, there would be no COLA adjustments in the Internal Revenue Code in 2011. Consequently, there would for 2011 be no calibration to the Code’s income tax brackets to recognize 2010 inflation. All of the Code’s other COLA modifications would similarly be suspended for 2011. To take another example, the maximum permitted 401(k) contribution for 2011 would stay at 2010 levels and would not be increased to reflect 2010 inflation. When inflation adjustments resume for 2012, the 2010 increase in the cost-of-living will be permanently omitted from these calculations.
Similarly, on the spending front, all COLA adjustments would be suspended for 2011. Thus, social security payments for 2011 would not be increased to reflect 2010 inflation. When COLA increases resume in 2012, 2010’s inflation would be permanently omitted from the Social Security base.
By the same token, federal outlays which are not explicitly geared to the cost-of-living would stay flat for 2011. This would apply to everyone and everything including defense, Medicare, Medicaid, and farm subsidies.
DeWitte, Roels, and Stevens on The Matthew Effect: Why Current Pension Policy Helps the Rich Get Richer
Kim DeWitte (K.U. Leuven (Belgium)) has brought to my attention an article he wrote with Yves Stevens (K.U. Leuven (Belgium)) and Paul Roels, concerning the individual and voluntary pension provision in Belgium, entitled: The Matthew Effect: Why Current Pension Policy Helps the Rich Get Richer. It was published last year in J. STEWART and G. HUGHES (ed.), Personal Provision of Retirement Income, Meeting the Needs of Older People?, Cheltenham - Northampton, Edward Elgar.
Makes me wonder if American 401(k) arrangements are not susceptible to the same arguments in that such arrangements primarily help wealthier employees. Very interesting article, read the whole thing.
Willis and Bales on Successorship
Drew Willis (Northern Kentucky) and our own Rick Bales (Northern Kentucky) have just posted their recent paper on SSRN: Narrowing Successorship: The Alter Ego Doctrine AndThe Role of Intent.The abstract states:
When one company is acquired by another in a bona fide transaction, the successor employer generally is not bound by the substantive provisions of a collective-bargaining contract negotiated by its predecessor. However, when a company merely changes its name or corporate form, courts will use the alter ego doctrine to hold the company to its labor obligations. Courts are split regarding the role intent should play in distinguishing successor companies from alter ego companies. Our article argues that courts should be able to infer invidious intent from anti-union animus; from the employer’s receiving a foreseeable benefit by eliminating its collective bargaining obligations; or from the employer’s desire to avoid its collective bargaining obligations, even if the employer was motivated by other factors also.
An interesting entry into the mixed motives fray from a new direction.
Another Settlement in 401(k) Mutual Funds Litigation
In a class action lawsuit challenging inherently conflicted plan fiduciaries, the company has agreed to pay $13.8 million to settle claims that it breached its fiduciary duties. (Phones Plus Inc. v. Hartford Life Ins. Co., No. 3:06-cv-1835 (D. Conn., motion filed 2/11/10).
Hartford Life Insurance Co. allegedly breached its fiduciary duties by receiving revenue sharing payments from various mutual funds. The settlement, if approved by the judge, will require Hartford to make several structural changes to its business practices.
According to the BNA Daily Labor Report (subscription required):
• Hartford will remove from plan documents any language that restricts the plan's
selection of investment options;
• Hartford will not enforce any plan language that says Hartford may periodically invest
assets in short-term money market instruments, cash, or cash equivalents;
• Hartford will begin the process of seeking approval from relevant state departments of
insurance to revise portions of its group annuity contract that addresses mutual fund
availability to make clear that Hartford will not delete or substitute an investment option
chosen by a plan, unless the investment option is no longer available;
• Hartford will include language in its plan disclosure documents supplied to new and existing customers that explains that all of the mutual fund investments options make revenue sharing payments to Hartford or its affiliates;
• Hartford will make available to all current and future class members a list of all
investment options offered for such plan's product and the revenue sharing rates paid by
the relevant mutual fund company; and
• Hartford will make available to current and future class members detailed information
about revenue sharing rates and investment expense ratios.
It will be interesting to see if these type of structured settlements are a sign of things to come in these types of ERISA breach of fiduciary duty suits.
Hat Tip: Rob Rachal