April 29, 2011
Recently Published Scholarship
- Katherine A. Macfarlane, The Improper Dismissal of Title VII Claims on "Jurisdictional" Exhaustion Grounds: How Federal Courts Require That Allgations Be Presented to an Agency Without the Resources to Consider Them, 21 GMU Civ. Rts. L.J. 213 (2011).
- Scott C. Ross, How On Earth Can You Possibly "File" an Oral Complaint?: An Analysis of the Boundaries of 215(A)(3) of the Fair Labor Standards Act, 84 St. John's L. Rev. 1543 (2010).
Tech in LEL
David Foley is attending the ABA's Technology in Labor and Employment Law Symposium, and has a terrific post on the first day's festivities over at LaborRelated. Here are a couple of excerpts that I found particularly interesting:
- First, from the panel on What You Really Need To Know: The Top 5 Legal and Legislative Technology Developments Impacting the Practice and the Workplace moderated by Cynthia Nance with panelists Lewis Maltby, Anthony Oncidi, and Kristn Mathews. This group covered a lot including ... Social Media as a tool in hiring and firing. Regarding hiring, I was surprised by the group's consensus that it is probably not a good idea for hiring managers to facebook stalk (not the phrase used by the panelists) job candidates. The problem as they saw it was that the manager would become pregnant with knowledge that he could not legally use but would use anyway or at least would be accused of using.
- Second, from the panel on Social Media and the Global Workplace moderated by Allan Dinkoff, with panelists Paul Callaghan (in from London), Carsten Domke (in from Germany), Brian M. Flock, Hanan B. Kolko, and Ginger McCall. The group wrestled with a hypo involving a male employee who facebook friends a female coworker, discovers a topless picture of the coworker in her facebook pictures and thereupon emails the picture to other coworkers through his private email account, who in turn email it to other coworkers through the employer's email system. The female employee is upset and wants the employer to do something about it....
If you're at the conference, feel free to post a comment letting us know what's happening.
College Threatens to Hire Permanent Replacements for Faculty
The Board of Mount Hood Community College has threatened to hire permanent replacements if the faculty go forward with a threat to strike. The college and Full-Time Faculty Association, which represents the college's 156 full-time faculty members, have been engaged in a heated labor dispute for more than a year, with unfair labor practice charges flying. On April 7, union members voted to authorize a strike if a new contract agreement could not be reached.
For more on what's happening at Mount Hood, see articles here and here from the Portland Business Journal. For a nice analysis of the risks that hiring permanent replacements would pose to both the College and to the permanent replacements themselves, see Dean Dad's post on the topic.
Second-Guessing an Employer's Response to Harassment
Jon Harkavy sends us a copy of EEOC v. Xerxes Corp., a racial-harassment decision just released by the Fourth Circuit. For the sake of getting right to the interesting issue, I'm going to oversimplify a bit. Employer learns of really bad racial harassment in the workplace. Employer takes significant steps to stop the harassment, including disciplining but not discharging the harassors. Really bad harassment continues. Is the fact that the harassment continued evidence that the employer did not take appropriate remedial measures to stop the harassment?
Ultimately, I think this has to be a judgment call. Wrist-slaps aren't enough. On the other hand, industrial capital punishment probably isn't appropriate for most first-time offenses, at least for those of us who believe in progressive discipline and the possibility of remediation. But sometimes reasonable minds can differ over where to draw that line, which is why the case produced three separate opinions.
Query: is the judgment call for the judge or for the jury?
April 27, 2011
Supremes Uphold Arbitral Class-Action Waivers
The U.S. Supreme Court today issued AT&T Mobility, LLC v. Concepcion, which upholds arbitral class-action waivers. Scalia writes for the 5-4 majority, Thomas concurs, and Breyer writes for the dissent. I believe the decision is exactly wrong.
The Concepcions purchased a cell-phone contract from AT&T. The contract contained an arbitration provision requiring that claims be brought in the party's "individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding." The cell-phone contract came with a "free" phone, but AT&T nonetheless billed the Concepcions for $30.22 in tax for the retail value of the phone. The Concepcions brought a class action. AT&T moved to compel arbitration. The district court denied the motion, and the 9th Circuit affirmed, both on the basis of the California Supreme Court's ruling in Discover Bank v. Superior Court that class-action waivers are unconscionable if, among other things, bilateral dispute resolution would not substitute for the deterrent effect of a class action.
Section 2 of the Federal Arbitration Act provides that arbitration agreements are enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." The Supreme Court has consistently, until today, interpreted this to mean that arbitration agreements must be treated the same as other contracts; if state law imposes a restriction on arbitration agreements but not on other contracts, that restriction is preempted by the FAA.
The Discover Bank rule would have been valid under that test, because the rule forbade unconscionable consumer class-action waivers not only in arbitration agreements, but in any agreements, whether the agreements contained an arbitration clause or not. The majority, however, found that the Discover Bank rule has the effect of discouraging arbitration by increasing the complexity of the dispute-resolution process and thereby making arbitration less attractive to the AT&Ts of the world. The problem with this argument, as the dissent points out, is that it is inconsistent with the text of the statute. It is also boundaryless. What happens when AT&T puts a provision in its arbitration agreement forbidding arbitral discovery? A provision limiting remedies in employment cases to the lesser of actual damages or $500? Striking these clauses would "discourage" arbitration by increasing the complexity of arbitration and making arbitration less attractive to BigBusiness. Are we on the road to laissez-faire arbitration?
The majority also stated that "Requiring the availability of classwide arbitration interferes with the fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." As the dissent correctly points out, however, there is nothing anywhere that says that proceeding as an individual is a "fundamental attribute of class actions." The majority makes this up out of thin air. Nor does the majority explain its assumption that the only possible alternative to individually arbitrated claims in this case was classwide arbitration. A third -- and more just -- result would have been for the Court to strike the lopsided arbitration clause in its entirety and allow the case to be litigated as a consumer class action.
This case itself illustrates the unjustness of the rule adopted by the majority today. No lawyer in his or her right mind is going to represent the Concepcions in an individual claim -- whether arbitrated or litigated -- for $30.22. The Concepcions get redress from AT&T, if at all, only through a class proceeding. The AT&Ts of the world know this, and will soon be falling over themselves drafting class-action-waiver arbitration clauses. But these are not really "arbitration" clauses, because few of these claims will ever go to arbitration. These clauses are more accurately described as "liability-waiver clauses", because they permit large companies to escape liability entirely.
The Court's willingness to pervert a plain-reading interpretation of the statute in order to buttress its strong policy preference for arbitration, at the expense of consumers (and employees) and for the profit of BigBusiness, is appalling.
Schwartz Temple & Beaupre Gillespie on Balancing
Congratulations to Hollee Schwartz Temple (West Virginia) and Becky Beaupre Gillespie, a journalist, both of whom are work/life balance columnists for the ABA Journal on the publication of their new book, Good Enough Is the New Perfect.
Here's an excerpt from the book, available on the Amazon page that describes the project well:
Good Enough Is the New Perfect is based on journalistic research we conducted over two years, beginning in 2008. It draws on exclusive data—our survey of 905 working mothers born between 1965 and 1980 and representing almost every state in the nation—as well as in-depth interviews with more than 100 working mothers. Some of these women were subjects of multiple interviews conducted regularly over one or two years; their generous gifts of time gave us deep insight into the wide range of factors that shape women's choices today. We also have drawn from expert research into issues ranging from marriage to feminism to business; some of the experts we consulted shared hours of time to help us better understand our findings.
Our key findings, by the way, surprised us. Our research revealed two types of working mothers: the Never Enoughs, who felt a constant need to be "the best," and the Good Enoughs, who said that being "the best" wasn't important, as long as they were good enough and happy at work and at home. What caught our attention wasn't that these two groups existed—it was how differently they fared in their attempts to balance work and family.
We want to be clear on one point right away. We intentionally chose to examine only a slice of the maternal population—mothers who had the privilege of education and a certain amount of choice regarding work, including the ability to temporarily scale back hours, switch jobs or take time off. Almost all the women we interviewed—though diverse in race, geography, profession and family background—were college-educated and relatively secure financially. (Which isn't to say that they didn't feel money pressures; many did. But most weren't worried about putting food on the table at night.) Almost all of our survey respondents had attended college, and nearly half worked in jobs that required an advanced degree. We're very much aware that other groups face work/life issues, and that many women do not have much (or any) choice with respect to their work—but that's not the focus of this book.
This is a great addition to the literature on balance, on women, family, and work, and on the growing body of happiness literature. My only small critique is that it seems so woman focused--and so one-partner focused (although I haven't had a chance to read it yet and am going from the web site and descriptions).
I admit that I'm biased on this issue because I currently have a male stay at home spouse, and we have traded off various home/kid duties over time. While there are many gender-specific issues for women in the work-life fit, I'd like to know about issues for men, straight or gay, and for lesbians; I'd like to know whether there are differences based on gender and sexual orientation; and I'd like to know about cooperative partner balancing, too.
Of course, we've all gotten that question in workshops about why we didn't study something else and hated it equally, so maybe that critique is not fair and it's for the next project for someone to take on. Regardless, this book is a fabulous contribution!
April 26, 2011
OFCCP proposes new rule on affirmative action for veterans
The U.S. Department of Labor's Office of Federal Contract Compliance Programs today announced a proposed rule to strengthen affirmative action requirements of federal contractors and subcontractors for veterans protected under the Vietnam Era Veterans' Readjustment Assistance Act of 1974. Veterans protected by VEVRAA include those with disabilities and those recently discharged as well as those who served during a war, campaign or expedition for which a campaign badge is authorized. The proposed rule will be published in the April 26 edition of the Federal Register.
At the Labor Department, we support veterans as they seek meaningful ways to apply their talents to expand the American economy. By re-examining our affirmative action requirements, we will ensure that our nation's veterans are protected against discrimination and provided equal opportunity in the workforce," said OFCCP Director Patricia A. Shiu.
The award of a federal contract comes with a number of responsibilities. Among them are complying with non-discrimination and affirmative action provisions, engaging in meaningful and effective efforts to recruit and employ veterans protected under VEVRAA, and maintaining accurate records on affirmative action efforts. Failure to abide by these responsibilities may result in various sanctions, from withholding progress payments to termination of existing contracts and debarment from receiving future ones.
The framework articulating a contractor's responsibilities with respect to affirmative action, recruitment and placement has remained unchanged since 1976. Increasing numbers of veterans are returning from tours of duty, and many are faced with substantial obstacles in finding employment upon leaving the service.
The proposed rule clarifies mandatory job listing requirements, under which a contractor must provide job vacancy and contact information for each of its locations to an appropriate employment service delivery system. The rule proposes requiring contractors to engage in at least three specified types of outreach and recruitment efforts each year. In addition, the proposed rule would require that all applicants be invited to self-identify as a "protected veteran" before they are offered a job. Increasing data collection on job referrals, applicants and hires, and requiring contractors to establish hiring benchmarks to assist in measuring the effectiveness of their affirmative action efforts also are proposed.
Comments on the notice of proposed rulemaking must be submitted by June 25. Visit the federal e-rulemaking portal, http://www.regulations.gov, to submit comments.
The federal register excerpt is here.Given all of the news about veterans having trouble back in civilian life, and the evidence of at least some hostility to military service, given the facts in Staub v. Proctor Hospital, this is a step in the right direction.
Hat tip: Pat Schaeffer
Doorey's Workplace Law Blog Now a Free I-Tunes App
David Doorey (York Univ. Canada) Workplace Law blog has just been approved as an I-Tunes app for i-pads, i-phones, i-pods.
Here is David's own blog entry announcing the new App. Go check it out.
American University Labor & Employment Law Forum - Spring 2011 Edition
Their second book is composed mostly of the transcript of the February 19, 2010 symposium entitled "Employment Discrimination: 45 Years of Enforcement of Title VII of the Civil Rights Act of 1964". The transcript of this event serves as a history and testament to the work of the Employment Litigation Section over the past forty-five years and includes panelists such as Richard Ugelow, Susan Carle, David Rose, Vicki Shultz, Joel Contreras, Squire Padgett, Robert Marshall, Frank Petramalo, Jr., Doug Huron, Terence Connor, Michael Middleton, Marybeth Martin, Gerald George, Vivian Toler, Bill Yeomans, Robert Libman, Aaron Schuham, John Gadzichowski, Jocelyn Samuels and Michael Selmi.
This second book also contains a student note by Jessica Clarke regarding the Fair Pay and Paycheck Fairness Acts. The Spring, 2011 edition can be found at digitalcommons.wcl.american.edu/lelb and through its website: www.aulaborlawforum.org.
April 25, 2011
NFL Players Win First Legal Round
UPDATE: Judge Nelson has just denied the NFL's request to stay her order.
District Court Judge Nelson has just issued a preliminary injunction that requires the NFL to end its lockout. This is only the beginning of the game, however, as the NFL has stated that it will appeal and seek a stay of the injunction. The basics of the judge's ruling, as summarized by the Washington Post, are:
In her lengthy ruling, Nelson addressed each of the league’s arguments about why she should not lift the lockout. She found the players’ decertification of their union to be valid and concluded that she did not have to wait for the National Labor Relations Board to complete an investigation of an unfair labor practice charge by the league against the union, as the NFL had urged her to do.
She also rejected an argument by the NFL that federal labor law, specifically the 1932 Norris-LaGuardia Act, prohibited her from granting the players’ injunction request in a labor dispute.
“The NFL. . . argues that the protections of labor law should apply for some indefinite period beyond the collapse and termination of the collective bargaining relationship. In the absence of either persuasive policy or authority, this Court takes a more conservative approach, and declines to do so.”
And she noted, the “public interest” does not favor the lockout.
“Professional football involves many layers of tangible economic impact, ranging from broadcast revenues down to concessions sales. And, of course, the public interest represented by the fans of professional football--who have a strong investment in the 2011 season--is an intangible interest that weighs against the lockout,” she wrote.
What will be interesting is whether negotiations, to the extent they exist, are effected. Stay tuned.
Secunda on Doorey: Transnational New Governance
Our own Paul Secunda has a nice post at Jotwell (Journal of Things We Like Lots) reviewing David Doorey's (York Univ.) article, In Defense of Transnational Domestic Labor Regulation, 43 Vand. J. Transnat'l L. 953 (2010). Here's a bit from the post:
In his new paper, In Defense of Transnational Domestic Labor Regulation, Professor David Doorey has written a meticulously footnoted and researched article on an important issue that is increasingly facing modern democratic economies: to what extent should such countries seek to use their influence to improve labor practices in economically-developing countries? As Doorey explains, the answer is not as simple as merely deciding you want a labor side agreement to the latest free trade agreement. No, in addition to more formal legislative enactments, Doorey thoroughly explains the developing trend of using techniques which exist outside of formal state action, but nevertheless serve to influence and regulate working conditions and employer-employee relationships in third-world countries.
Paul critiques some of David's conclusions about the feasibility of this approach for protecting labor standards. Read both Paul's post and David's article--they're excellent.
Breastfeeding and perceived competence at work
A recent study in the Personality and Social Psychology Bulletin will be of interest to readers who think about sex discrimination. Jessie L. Smith, Kristin Hawkinson, and Kelli Paull, all at Montana State University conducted three studies designed to get at paternal bias and perceptions of breastfeeding women more specifically. The description of the studies is entitled Spoiled Milk: An Experimental Examination of Bias against Mothers Who Breastfeed. Thanks to Sage Journals, which has made this article free to the public.
The article describes the growing body of social psychology research that documents how women who are mothers are perceived as less competent but more warm than are men or women who are not mothers. The studies' authors wanted to test how breastfeeding fit into those perceptions. They found, generally, that mothers who breastfeed were found to be less competent--to the point that it made the test subjects less likely to hire them. Here's the abstract:
Drawing from the objectification literature, three experiments tested the hypothesis that breastfeeding mothers are the victims of bias. In Study 1, participants rated a woman who had breastfed as incompetent. Study 2 replicated these effects and determined that the bias was specific to conditions that sexualized the breast. In Study 3, participants interacted with a confederate in which attention was drawn to her as a mother, as a mother who breastfeeds, as a woman with sexualized breasts, or in a neutral condition. Results showed the breastfeeding confederate was rated significantly less competent in general, in math and work specifically, and was less likely to be hired compared to all other conditions, except for the sexualized breast condition. Importantly, the breastfeeding mother emphasis and the sexualized breast emphasis resulted in equally negative evaluations. Results suggest that although breastfeeding may be economical and healthy, the social cost is potentially great.
And here's one of the key paragraphs from the discussion:
One focal point of the current project was on perceptions of the breastfeeding mother in the workplace. Study 1 showed that people assume a breastfeeding woman would experience more sexist events in her career compared to a bottle-feeding woman. Study 2 and Study 3 showed that the breastfeeding mother’s workplace competence was specifically diminished.
One of the most interesting things to me was that in the third study, the breastfeeding woman and the woman whose breasts were sexualized, but who was not linked with breastfeeding, were rated less competent at equal rates. The authors suggest that the cause for this was that having people think about a woman's body parts led them to objectify that woman and to discount her personhood. There also was no difference based on the gender of the subjects--both men and women rated breastfeeding women as less competent.Finally, there was no observed motherhood penalty, although the authors suggest that could be caused by the design of the studies.
It all makes me want to say, in the words of Julia Roberts in the movie, Erin Brockovich, "They're just boobs, Ed."
Recently Published Scholarship
- Eric D. Chason, Redressing All ERISA Fiduciary Breaches Under Section 409(a), 83 Temple L. Rev. 147 (2010).
April 24, 2011
Trucker Strike in China
China may have an official union that doesn't like to strike, but that doesn't mean they don't happen. Currently, truckers who carry goods to and from the Shanghai port--and who are independent contractors--have been striking for days. Their complaint revolves around the government's raising of fuel and other consumer prices. The strike has caused delays in various shipments and seem to have officials nervous, particularly given the protest in the Middle East. How much longer officials allow the strike to continue before taking more serios measures remain to be seen.
Hat Tip: Michael Duff