May 20, 2011
Morantz: Union Status Correlates with Coal Miner Safety
Alison D. Morantz (Stanford) has just posted on SSRN her article Coal Mine Safety: Do Unions Make a Difference?. The article is pariticularly well-timed, having been posted on the same day as the release of this Report concluding that the 2010 explosion at Upper Big Branch Mine, in which 29 miners died, was the result of pervasive safety violations by mine owner Massey Energy. Here's the abstract:
Although the United Mine Workers of America (UMWA) has always advocated strongly for miners’ safety, prior empirical literature contains no evidence that unionization reduced mine injuries or fatalities during the 1970s and ‘80s. This study uses a more comprehensive dataset and updated methodology to examine the relationship between unionization and underground, bituminous coal mine safety from 1993 to 2008. I find that unionization predicts a substantial and significant decline in traumatic mining injuries and fatalities, the two measures that I argue are the least prone to reporting bias. These disparities are especially pronounced among larger mines. My best estimates imply that overall, unionization predicts an 18-33% drop in traumatic injuries and a 27-68% drop in fatalities. However, unionization is also associated with higher total and non-traumatic injuries, suggesting that injury reporting practices differ substantially between union and nonunion mines. Unionization’s attenuating effect on the predicted frequency of traumatic injuries seems to have grown since the mid 1990s.
May 19, 2011
When is an action taken because an employee is black not because of race? While many of us would have thought the answer was never, the Tenth Circuit recently disagreed. Apparently, it's not race discrimination if you're firing a black to avoid a reverse discrimination suit by a white.
The facts in Crowe v. ADT Security Services are pretty straightforward. Plaintiff seems to have been a pretty troublesome employee, or at least his co-workers thought so. He was the target of a number of complaints, including sexual harassment allegations. Prior conduct had resulted in more than one "last chance" letter. So when he was finally fired, he was an unappealing plaintiff. It's true that he claimed that some or all of the co-worker complaints were false, but the "honest belief" rule, which the court cited, seemed to make that irrelevant.
The ramifications of not terminating Wythe Crowe could be huge! Think about this: What if a white male exhibits the same harassing, insubordinate, discriminatory, and disrespectful behavior as Wythe has done over the years. If we decide to fire this person, we have now set ourselves up for a reverse discrimination lawsuit. For that matter, since we have allowed Wythe to exhibit this type of behavior for many years, it does not matter whether the next person is white, yellow, or pink, we are setting ourselves up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.
Now, admittedly, Laurila thought there was plenty of reason to fire Crowe before she got to the reverse discrimination argument. So maybe it was just icing on the cake. But the causation issue would seem to be a jury question at least given that Laurila apparently thought that her race-neutral reasons might not do the trick. Why else make the argument? One would think that a jury could find a motivating factor here, maybe even a determinative factor.
Not the Tenth Circuit:
However, the report, even when viewed in the light most favorable to Mr. Crowe, simply does not exhibit hostility to Mr. Crowe based upon his race. . . . The report merely discusses ADT's potential exposure to lawsuits based upon a failure to enforce its policies on a consistent basis, without regard to race. We need not expound on how the requisite discriminatory animus may be shown, but the report here is insufficient.
OK, maybe the report doesn't indicate "hostility" based on race, but that hasn't been the standard for at least 30 years. The question we usually ask is, was the action based on race? And the answer seems to be yes.
One explanation for the result might be the offenses in question. Laurila's memo framed the debate as sex vs. race. The preceding paragraph in her memo asked
[W]hy have we allowed Wythe to treat management and specifically, women in positions of power, with such disrespect? Why did ADT continue to try to appease this person and not support or protect our management team from this type of harassing and disrespectful abuse? This behavior is against the law at any company in this country. Why do we allow it here at ADT? If Heather England took this case to the EEOC or to court, ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.
But Laurila is wrong in one respect: the courts have been unanimous in holding that an employer does not lose its affirmative defense by not firing a harasser. Of course, a company may fire serial harassers, and maybe should, but the question remains whether Crowe was fired because he was black.
Of course, there is another possibility that the court doesn't acknowledge but might also explain its result: Laurila's point is that Crowe has been given a free pass for years because of his race, and it is now time to treat him as the company would any other employee. Factually, that would again seem like a jury question. Conceptually, it poses the problem of whether "leveling the playing field" which was racially tilted is action because of race.
If all this is confusing, compare Crowe to Wilkerson v. Columbus Separate School District, where the court found that a white coach created a jury question of discrimination when he showed that board members asked for his discharge for misconduct because a black coach had been recently fired: "You got the black, now you are going to get the white."
Reminder -- Forum Proposals Due June 1st
Just a reminder that Seton Hall's Sixth Annual Employment & Labor Law Scholars' Forum will be held this October and that junior scholars' proposals are due Wednesday, June 1, 2011. They should be 3-5 pages in length and submitted to me at firstname.lastname@example.org.
Another NLRB Facebook Case
The NLRB has just announced that it has another complaint involving Facebook. Much like the earlier case, which caught a significant amount of attention, this case isn't that novel aside from the collective action happening to involve social media. According to the Board's description:
The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The complaint was issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York.
The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients. The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.
The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB.
Even more than the previous case, there doesn't seem to be a lot of legal issues here. There is perhaps an argument that the intitial posting isn't protected, but the following messages seem classic concerted and protected communications. The one question I have is whether they used any of the employer's equipment or networks, which could raise a Register-Guard problem. Barring that, this seems to come down to whether the GC can prove its allegations about why the terminations occurred and whether there really was enough harassment to render the communications unprotected.
May 18, 2011
Pace L. Rev. Call for Papers
The editors of the Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to an issue slated for publication during the Fall of 2011. This issue focuses on the changing landscape of Labor and Employment in the modern market. We hope to publish articles that examine the changing legal employment landscape including commentary on the viability of the traditional law firm model and the billable hour, the effect of the internet on multijurisdictional practice, and how attorneys should expect the practice of law to continue transforming in the next ten to fifteen years. In addition, we are also soliciting articles discussing the impact of current events on labor law. Current events may include the bills passed in Wisconsin and Ohio limiting collective bargaining rights of unions, the effect of government funding and politics on labor negotiations, and the renegotiation of the collective bargaining agreements for each of the four major sports leagues in the United States within the next year. If you have an article idea that fits within the employment or labor realm more broadly than the examples provided above, we encourage you to still submit your proposal for consideration as we are interested in scholarly discourse and are not strictly confined to the above mentioned events.
Please submit proposals of no more than 500 words by attachment to email@example.com by June 1, 2011. If you already have a completed article or an article in progress, you may submit the piece with an abstract of no more than 500 words describing the work. We welcome proposals for articles, essays, and book reviews. All proposals should include the author's name, title, institutional affiliation, contact information, and should concern issues related to the subject matter described above. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer's expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 17, 2011. Completed manuscripts of scholarly articles and book reviews will be due August 19, 2011.
EEOC & OFCCP Party in CA
The Equal Employment Opportunity Commission and the Department of Labor’s Office of Federal Contract Compliance Programs will co-host an event this Thursday in Pasadena, California to commemorate the 45th anniversary of both the EEOC and OFCCP. The event, to be held at the Western Justice Center, will highlight the accomplishments of both agencies, with the litigation program being the focus of the EEOC’s celebration. The agencies’ senior leadership – EEOC Chair Jacqueline A. Berrien, EEOC General Counsel P. David Lopez and OFCCP Director Patricia A. Shiu – will kick off the event along with Judge Richard A. Paez of the U.S. Court of Appeals for the Ninth Circuit.
The event will be Thursday, May 19, starting at 1:00 p.m., at Western Justice Center – Maxwell House, 55 South Grand Avenue, Pasadena CA. It is free and open to the public, but reservations are required.
Senator Al Franken has re-introduced the Arbitration Fairness Act, this time with provisions that specifically would overturn Concepcion. Whether the bill will gain traction this time around depends on whether supporters can rally behind the Supreme Court's awful Concepcion decision. I think it's too early. What will galvanize attention is for a court applying Concepcion to nuke judicial access in a case involving a lot of very sympathetic plaintiffs. Supporters of the AFA will then be able to point to that case to demonstrate the merits of some version of the AFA.
May 17, 2011
Onwuachi-Willig Receives Named Professorship
Angela Onwuachi-Willig (Iowa) has just been appointed the Charles M. and Marion J. Kierscht Professor of Law. Angela is a leading scholar in employment discrimination and in the field of race and law and race as a social construct. Her dean, Gail Agrawal, describes her as "a highly valued member of our law school community and an inspiring mentor to our students."
Hat tip: Lea Vandervelde.
ALI Considers Two Chapters of Employment Restatement
- Chapter 6: Other Torts Affecting the Formation, Continuation, or Termination of the Employment Relationship [defamation, wrongful interference, fraudulent misrepresentation, negligent provision of false information].
- Chapter 8: Employee Obligations and Restrictive Covenants [duty of loyalty, confidential information, employee competition with current or former employer, noncompetes, inventions].
May 16, 2011
NFL Owners Win Current Round in Legal Battle
The NFL owners have just gotten at least a temporary win from the 8th Circuit. The court, in a 2-1 decision, has stayed the district court's injunction against the owners' lockout. Based on the decision, the majority seemed to indicate that the owners have a good chance of winning on the merits after the full case is heard; oral arguments are on June 3.
The most interesting aspect of this case for me is whether the Norris LaGuardia Act applies. Some language of the act, which deprives federal courts of jurisdiction to issue injunctions in certain case arising out of labor disputes, would seem to eliminate jurisdiction in this case. However, the policy an intent of the act was clearly directed at injunctions stopping unions' collective action, and there is no union currently involved in this dispute. I haven't looked at this question enough to have a solid opinion, so any comments would be welcome (Michael Duff (Wyoming), I'm looking at you, as the dissenting judge cited one of your articles).