Workplace Prof Blog

Boy Oh Boy

The Eleventh Circuit's continuing struggles with the apparently intractable question of when the use of the word "boy" to address a adult African American male may have finally reached a conclusion, and one that most thought was obvious from the beginning. 

The case is, of course, Ash v. Tyson Foods,  which has had no fewer than five trips to the circuit court, one prompted by the Supreme Court's reversal of an opinion that not only refused to read any racial overtones into the use of "boy" but also deployed the infamous "slap in the face" test to limit the use of comparators. I've addressed the latter issue at perhaps excessive length,  The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191, 204-06 (2009), but the boy issue is the one that refused, until now, to go away. 

It has gotten considerable attention over the years, see, e.g., here and here, and here, and this time is no exception.  Indeed, since the latest turn is a man-bites-dog story, the revival of public attention is not surprising. Put simply, after four time resolutely finding boy to be of no significance, or at least not enough significance to (in connection with pretty powerful comparator evidence) justify the jury verdict in plaintiff's favor, the Eleventh Circuit panel finally threw in the towel in Ash V:  at least in view of evidence at the retrial about "context, inflection, tone of voice, local custom, and historical usage," a white supervisor's addressing a black adult male as boy evidences discrimination.

The point is so obvious that the panel's having taken so long to get there, including a second trial, would be humorous but for the message sent to civil rights plaintiffs and their attorneys.

Why the panel finally reversed itself is not so clear. Given its obstinacy over the course of four previous opinions, maybe "Christmas miracle" is the best answer. However, less supernatural speculation centers on the public scorn for the panel as a result of the amicus brief filed by a number of civil rights leaders, many of whom are household names.  The resultant risk of reversal by the circuit en banc might have seemed overwhelming.

While it's not good news that such heroic measures needed to be taken to preserve a jury verdict for plaintiff, the plaintiff's attorney, Alicia Haynes, should be congratulated for both her perseverance and the effectiveness of her advocacy.

 CAS

Labor & Employment Roundup

Here's the holiday edition of our labor & employment roundup:

• The new Special Counsel is putting more teeth into that office than we've seen in years, and gotten some backlash--particularly Rep. Issa---as a result.
• Bill Gould (Stanford) on the ramifications of the NLRB having only two members.
• Recess appointments for new NLRB nominees?
• The D.C. Circuit holds that the NLRB needs to give a better explanation for its decision not to reduce backpay awards by the interim earnings of employees whose hours were unilaterally, and therefore illegally, cut.
• The NLRB's most recent Venetian decision, answering the D.C. Circuit's remand inquiry by concluding that calling the police to remove union protestors on a sidewalk violated the NLRA, in spite of the Noerr-Pennington doctrine (because calling the police was not a direct petitioning of the government).

Hat Tip:  Dennis Walsh

-JH

DOL Developments

Kenneth Shiotani (National Disability Rights Network) sends us word of two Department of Labor developments:

• The DOL is publishing its draft Environmental Justice Strategy in response to the Memorandum of Understanding with the Interagency Working Group on Environmental Justice (EJ IWG) signed in August 2011. President Obama has renewed agencies’ environmental justice planning by reinvigorating Executive Order 12898 (EO 12898), which tasked Cabinet-level Federal agencies with making environmental justice part of their mission. The agencies were directed to identify and address, as appropriate, the disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority and low-income populations.
  
  The Department views Environmental Justice from a workplace training, health and safety perspective. The Department is developing an Environmental Justice Strategy that is in line with the mission of the Department and Secretary Solis’ vision for the future: good jobs for everyone. The vision of good jobs for everyone includes ensuring that workplaces are safe and healthy; helping workers who are in low-wage jobs or out of the labor market find a path into middle-class jobs; and helping middle-class families remain in the middle-class.

• The DOL's notice of proposed rulemaking on the application of the FLSA to home care workers was published in the Federal Register today.  Comments are due on or before February 27, 2012.

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NLRB Delays Notice Posting Rules Again

It's deja vu all over again.  Two-and-one-half months after delaying impementation of the notice posting requirement to January 1, 2012, the NLRB has just announced another delay--to April 30.  This time, according to the Board's announcement, the delay was made upon the request of the district court consider a legal challenge to the requirement.  I'm not sure whether that request indicates the way the court thinks it will rule, but I guess we'll find out soon enough.

-JH

 

 

NLRB Officially Adopts Election Rules

As anticipated, the NLRB has now officially published the abbreviated set of new election rules.  The rules will go in the Dec. 22 Federal Register and will become effective on April 30, 2012.  From the Board's announcement:

The rule is primarily focused on procedures followed by the NLRB in the minority of cases in which parties can't agree on issues such as whether the employees covered by the election petition are an appropriate voting group. In such cases, the matter goes to a hearing in a regional office and the NLRB Regional Director decides the question and sets the election. 

Going forward, the regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

You can find the final rule here, and a summary of the amendments here.  The Board also provided a nice comparison of the old and new rules.

-JH

Comparative/Int'l News

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Steve Willborn (Nebraska) sends notice of several developments for folks interested in comparative and international labor law:

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• Guy Davidov from the Hebrew University of Jerusalem has started a new organization of labor law academics, the Labour Law Research Network.  One nice thing he’s done is to establish a website which contains articles and events from around the world.
• Three international labor groups are in the process of establishing another website which will contain periodic updates on labor developments from around the world.  It will be much like this site, but with a focus on international and comparative labor law.  The site will also contain an index to labor law articles from around the world. The three cooperating groups are the US and Canadian Branches of the International Society for Labor and Social Security Law and the International Association of Labor Law Journals.  Watch for it in the near future.  Steve will post notice of its launch here.
• If you’re a younger scholar and have a piece close to ready to go, you might think of cross-pollinating with the American Society of Comparative Law.  They are inviting papers from young scholars for their conference next April 20 at the George Washington Law School. The submission deadline is February 15, 2012. Information can be found here.

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WFRN Preliminary Conference Program Available

Friend of the blog Marcy Karin (Arizona State) writes to let us know that the Work and Family Researchers Network or WFRN (formerly the Sloan Work and Family Research Network) has released the program for its inaugural conference. The WFRN

is an international membership organization of interdisciplinary work and family researchers. The WFRN also welcomes the participation of policy makers and practitioners as it seeks to promote knowledge and understanding of work and family issues among the community of global stakeholders.

The WFRN facilitates virtual and face-to-face interaction among work and family researchers from a broad range of fields and engages the next generation of work and family scholars. As a global hub, we provide opportunities for information sharing and networking via our website, which includes the only open access work and family subject matter repository, the Work and Family Commons. 

The inaugural conference is this June in New York City and features over 600 speakers from thirty countries. a quick glance at the program reveals that amont them are Joan Williams (UC Hastings), Nina Pilard (Georgetown), Beth Burkstrand-Reid (Nebraska), Michelle Travis (San Francisco), Robin Runge (North Dakota), Keith Cunningham-Parmeter (Willamette), Deborah Widiss (Indiana-Bloomington), Melissa Hart (Colorado), Ruth Milkman (CUNY, Sociology) and Marcy Karin (Arizona State).

It looks like a great conference and a great organization to become involved with for anyone working on these work and family issues.

MM 

Santa Sacked in Holiday Layoffs

From Psychology Today:

Silverwoman Sacks Private Equity Fund has signed a definitive agreement for a leveraged buyout of North Pole Enterprises for $300 billion.

In a letter to investors, the private equity firm noted some cost efficiencies they expected to achieve in North Pole operations. Instead of hiring seasonal Santa Clauses for department stores each year, Silverman Sacks plans to have nice boys and girls email their Christmas wish list. They will ship all toys via Amazon and sell the reindeers to zoos. 

S&P analysts immediately upgraded North Pole Enterprises from "Sell" to "Buy". In a note to investors, analyst John Elf wrote that he expects significant savings in labor costs. Santa is to be laid off and the elves will be let go.
...

President Obama asked Congress for a $2 trillion appropriation to bailout Santa, but the Republicans refused to go along.  They said Santa is an illegal immigrant.

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Recently Published Scholarship: SLU L.J.

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Saint Louis University Law Journal
Volume 56, Number 1 (Fall 2011)
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Articles:

• April G. Dawson, A Next Step in Health Care Reform: Ensuring the Protection of Employee Rights Under the Family and Medical Leave Act, p. 1.
• Marcia L. McCormick, Federal Regulation and the Problem of Adjudication, p. 39.
• Robert J. Tepper and Craig G. White, Workplace Harassment in the Academic Environment, p. 81.
• Kerri Lynn Stone, Shortcuts in Employment Discrimination Law, p. 111.

Current Scholarship:

• Sara Slinn and William A. Herbert, Some Think of the Future: Internet, Electronic, and Telephonic Labor Representation Elections, p. 171.
• Alek Felstiner, Grappling with Online Work: Lessons from Cyberlaw, p. 209.
• Richard A. Bales, A Data-Driven Snapshot of Labor and Employment Law Professors, p. 231.

Note:

• Nathan K. Bader, Hats Off to Them: Muslim Women Stand Against Workplace Religious Discrimination, p. 261.

Comments:

• Michelle M. Rich, The Delinquent State: Illinois and Compliance with Workers' Compensation Judgments, pg. 301.
• Michael C. Ross, Blow the Whistle at Your Own Risk: ERISA's Retaliation Provision and the Dilemma of the "Unsolicited Internal Complaint", p. 331.

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NPRM re FLSA Coverage for Home Care Workers

Thanks to Kenneth Shiotani (National Disability Rights Network) for sending us this link to the Notice of Proposed Rulemaking for President Obama's proposal to provide home care workers FLSA coverage for both the minimum wage and overtime.  The NPRM is from the DOL’s Wage and Hour Division website.

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RFP Warns Institute at Louisville

Ariana Levinson (Louisville) sends a request for proposals to speak at next summer's Twenty-Ninth Annual Carl A. Warns Jr. Labor & Employment Law Institute.  I spoke at this event last year; it atracts a fantastic group of both speakers and attendees.  Here are the details:

The Twenty-Ninth Annual Carl A. Warns Jr. Labor & Employment Law Institute invites you to submit a proposal to speak on a labor law or employment law topic.  We are accepting proposals on important or cutting-edge developments on issues that are relevant to practitioners. Some suggested topics are: wage and hour issues involving independent contractors and the Internal Revenue Service, the Dukes decision and class actions in employment law, and issues involved in advising those engaged in non-traditional service relationships, rather than traditional employment relationships, about their contracts. 

The Institute will take place on June21 & 22, 2012, at the Downtown Marriott in Louisville, Kentucky.  Attendees will be a nice blend of practitioners, public servants, and professors.  If you are unfamiliar with Louisville, it is a great place to spend a few days.

Proposals must be submitted by midnight Friday, December 30.  Based on your proposal, you may receive an invitation to speak at the Institute.  Speakers at the Institute will also have the opportunity to submit a manuscript that will be published in the University of Louisville Law Review Warns Institute Colloquium Issue, subject to space availability, a review of quality, and entrance into and compliance with the University of Louisville Law Review Author Agreement.  Manuscripts will be due March 1, 2011.  Selection of manuscripts for publication will occur in April.  All speakers must ultimately have some type of written material, such as an outline, article, or work in progress to include with the conference materials. 

Please submit your proposals to Ariana Levinson and copy Elisabeth Fitzpatrick.  There is no page limit or standard format for proposals although a short succinct proposal is preferred.  You are welcome to send draft manuscripts in addition to your proposal, if you desire.

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LEL a "Hot" Practice Area, Once Again

The legal marketplace may stink generally, but students with an interest/focus on labor/employment law have a leg up.  The National Jurist, describing the results of the Robert Denney Associates Annual Market Report on the legal profession, says that the following are the hottest practice areas now: Banking, Health Care, Energy, Intellectual Property, White Collar Crime, Regulatory work, Financial Services, Cyber Crime, Labor & Employment law, and Immigration.  This is at least the second year in a row that LEL has been "hot".

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Louis Jackson Competition Deadline Approaching

Marty Malin (Chicago-Kent) sends this reminder:

As you sit there grading those seminar papers, I’d like to remind you of the Louis Jackson Memorial National Law Student Writing Competition in Employment and Labor Law....  Entries are due January 17, 2012.  Entries are blind-judges by a national panel of labor and employment law professors.  (If you are interested in serving in future years, drop me a line.)  First place is $3,000; two second place awards of $1,000 each.  Additional information is available here.  So, as you come across good papers, please encourage the students who wrote them to enter them in the competition.

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Interior Argues NLRB Not Applicable to Indian Tribes

In this letter, Patrice Kunesh (Department of Interior / Office of Solicitor / Deputy Solicitor - Indian Affairs) argues that the National Labor Relations Act does not apply to Indian tribes.  Hat tip:  Matthew Fletcher's Turtle Talk. 

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Recently Published Scholarship

• Kathleen Clark, Ethics, Employees and Contractors: Financial Conflicts of Interest in and out of Government, 62 Alabama L. Rev. 961 (2011).
• Susan T. Fiske & Eugene Borgida, Standards for Using Social Psychological Evidence in Employment Discrimination Cases, 83 Temple L. Rev. 867 (2011).
• Amy L. Wax, Supply Side or Discrimination? Assessing the Role of Unconscious Bias, 83 Temple L. Rev. 877 (2011).
• Sarah Rudolph Cole, On Babies and Bathwater: The Arbitration Fiarness Act and the Supreme Court's Recent Arbitration Juriprudence, 48 Houston L. Rev. 457 (2011).

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Kolinsky: Broaden Sex-Plus to Include Mothers

Heather Kolinsky (Barry) has just posted on SSRN her article (36 Vermont L. Rev. 329) Taking Away an Employer's Free Pass: Making the Case for a More Sophisticated Sex-Plus Analysis in Employment Discrimination Cases.  Heather argues for a broader interpretation of sex-plus theory to encompass the concept of mother as a gender identified category.

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D.C. Circuit Enforces NMB Voting Rule

The D.C. Circuit (2-1), in Air Transport Assoc. v. NMB, enforced the NMB's new election voting rule.  As you might remember, that rule gave covered unions a win in an election if a majority of employees voting selected the union, as opposed to the old rule, which required a majority of eligible voters to select the union. The majority deferred to the agency's policy judgment and rejected the argument that the Railway Labor Act's langauge barred the change; indeed, the court repeatedly noted that the act said little on the topic, thereby warranting agency deference.  Judge Henderson, dissenting, stated that the RLA's reference to a "majority" of employees selecting a union mandated the previous rule.  Interestingly, she even refers to the Chevron "invention"--which seems an odd way of describing a doctrine that a D.C. Circuit judge has to apply in more cases than they can count.

Hat Tip: Patrick Kavanagh & Dennis Walsh

-JH

AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law 2011 Newsletter

Attached is the newsletter for the 2012 AALS Employment Discrimination Section and the Labor Relations and Employment Section from Peggie Smith (Wash U) and Deborah Widiss (Indiana-Bloomington).  They did a really really great job this year. Check it out!

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Labor Roundup

Some random labor-related news stories from the past week or so:

• A union drive in New York to create a pension program for jazz musicians who do most of their work in non-union clubs.
• The effect on NLRB employees from the recent attacks on the agency.
• NLRB publishes special rules covering the functions of the NLRB if/when it drops to two members.
• The D.C. Circuit holds that employees' work stoppage isn't protected by the NLRB because the employer's internal grievance procedure might be interpreted to allow for group complaints--despite the fact that the employer had refused the employees' attempts druign the work stoppage to discuss the termination of a pro-union employee.

Hat Tip:  Patrick Kavanagh, Kenneth Shiotani, & Dennis Walsh

-JH

New NLRB Nominations

Today, the White House made several new nominations, including two new Democratic appointees to the NLRB, Sharon Block and Richard Griffin.  According to the announcement:

Sharon Block, Nominee for Member, National Labor Relations Board (NLRB)
Sharon Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003.  From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson.  She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Richard Griffin, Nominee for Member, National Labor Relations Board
Richard Griffin is the General Counsel for International Union of Operating Engineers (IUOE).  He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel.   From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund.  From 1981 to 1983, he served as a Counsel to NLRB Board Members.  Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

I don't know Richard Griffin, but I'm well acquainted with Sharon Block.  I worked with her during my time at the NLRB's Appellate Court Branch (in fact, she was one of my first supervisors). If she's confirmed--obviously a really big if--she would do a great job.  Just as one example, she managed to get wins for the NLRB in the Hoffman Plastics case before both a three-judge and en banc panel of the D.C. Circuit.  Short-lived wins, but still impressive given the D.C. Circuit's usual stance on labor matters.

Here's hoping that these two nominees, as well as an additional Republican one, get confirmed sometime soon (if we're dreaming, we might as well go for a full Board).  What is left unsaid at this point is whether the President intends to make them recess appointments, assuming that he has the opportunity. Stay tuned.

Hat TIp:  Fred Jacob

-JH