July 9, 2011
At the beginning of this month, Connecticut Governor Dannel Malloy signed into law two important new employment laws. First, he signed Public Act 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees, the first of its kind to be passed by a state. This statute mandates that employers who have fifty or more employees who do not already provide at least five days a year of paid leave to provide up to five days a year of paid sick time. Clearly not every employer is covered, and in addition, not every type of employee is covered even for covered employers, Moreover, employees are not eligible until they have worked 680 hours. Still, Connecticut is the first state to mandate paid sick time in any form, and this is a very important development.
Secondly, Connecticut became the fourteenth state (plus DC for a total of fifteen state and state-like jurisdictions) to prohibit discrimination on the basis of gender identity or expression. Public Act 11-55, An Act Concerning Discrimination is the statute. Connecticut prohibits discrimination in a variety of contexts outside of employment as well, from housing to provision of utilities, and it added gender identity or expression to most if not all of these. Connecticut also prohibits discrimination on the basis of sexual orientation, but that status is not as broadly protected as the new addition.
July 8, 2011
Jury Rules in Favor of KBR in Jones Sexual Harassment Suit
We've talked before several times about the sexual harassment case of Jamie Leigh Jones against KBR, the federal contractor, in the context of arbitration--KBR tried to enforce an arbitration clause in its employment contract unsuccessfully. Jones alleged that she was sexually assaulted by a coworker and that the company locked her in a container when she reported the assault.The Houston Chronicle is reporting (and so is the Wall Street Journal) that the jury came back this afternoon finding that KBR was not liable for sexual harassment. KBR had argued that the sexual contact at issue was consensual, and that therefore it was not liable for harassment. From the WSJ,
Todd Kelly, a lawyer for Ms. Jones, said: "We respect the jury's decision based upon the evidence they were allowed to see." Mr. Kelly said it was too early to say whether he would appeal the verdict.
The case was particularly high profile as Ms. Jones's testimony before Congress over the alleged incident led to a change in federal law in 2009 that bars companies that require arbitration to resolve a range of complaints, including sexual assault and harassment complaints by their employees, from receiving government contracts.
Call for Papers: Albany Law Review Symposium on Workers' Rights
This year, the subject of Albany Law Review’s Annual Symposium is the state of workers’ rights one hundred years after the Triangle Factory fire and in the wake of efforts to end public sector bargaining in Wisconsin. The working title is “Protecting Workers’ Rights in a Post-Wisconsin World.” Potential article topics include, but are not limited to: comparing public and private labor law; unionism and politics; the history of public unionism, workers’ rights, and public policy; the state of workers’ rights, especially immigrant and other disenfranchised workers; the meaning of legislative efforts to end or curtail the collective bargaining rights of public sector workers; how the law can balance workers’ rights and public policy; and alternative forms of collective organizing and action in the public and private sectors.
The Symposium date is September 28, 2011. If you're interested in submitting an article and participating in the Symposium, contact Executive Editor for Symposia Nick Faso.
Anti-Smoking Policies in the Workplace
Companies are using both carrots and sticks to get workers to stop smoking, according to the Businessweek artilcle Companies Get Tougher with Employees Who Smoke. Macy's, for example, imposes a health-coverage surcharge of $420/year on smokers; Union Pacific and Scotts Miracle-Grow simply refuse to hire smokers (query whether any of this is legal in Kentucky, which forbids discrimination on the basis of smoking status). Employers are motivated by a desire to cut health-coverage premiums, but the impact of anti-smoking policies fall heaviest on low-income and poorly educated workers.
Hat tip: Jennifer Clemons.
Recently Published Scholarship
- Jessica A. Clarke, Beyond Equality? Against the Universal Turn in Workplace Protections, 86 Indiana L.J. 1219 (2011).
- Tracy Snow, Balancing the ERISA Seesaw: A Targeted Approach to Remedying the Problem of Worker Misclassification in the Employee Benefits Context, 79 George Wash. L. Rev. 1237 (2011).
- Yamuna Menon, The Intersex Community and the Americans with Disabilities Act, 43 Connecticut L. Rev. 1221 (2011).
- Alex Edelman, Show-Me No Discrimination: The Missouri Non-Discrimination Act and Expanding Civil Rights Protections to Sexual Orientation or Gender Identity, 79 UMKC L. Rev. 741 (2011).
- Kerry W. Langan & Katherine A. Ritts, 2009-10 Survey of New York Labor & Employment Law, 61 Syracuse L. Rev. 831 (2011).
AALS Section on Women in Legal Education Mentoring Program
Sandra Sperino (Cincinnati) writes to tell us of a mentoring program organized and administered by Colleen Medill (Nebraska) for the Section on Women in Legal Education of the American Association of Law Schools. Here is the announcement:
Opportunities for finding a mentor
At different stages of their careers, individuals may need different types of mentoring. Mentoring needs could be in teaching, in scholarship development, or with work-life issues and experiences. Therefore, a "onesize fits all needs for all times" approach to mentoring has proven difficult to implement in the past.
The Section on Women in Legal Education's Mentoring Program takes a different approach to traditional mentoring. The Section's program is structured as an "a la carte" program. The volunteer mentors and their expertise and experiences are listed on the Mentoring Program website. Individuals who desire mentoring are encouraged to contact directly any volunteer mentor on the list who matches the individual’s particular mentoring need(s). Mentors are available to give assistance and advice concerning teaching, scholarship and work-life issues. The URL for the site is: http://law.unl.edu/wile.
Professor Colleen Medill at the University of Nebraska administers theweb site and serves as the chair of the Mentoring Program. Her e-mail is email@example.com. You may contact Colleen if you want assistance infinding a "match" for the type of mentoring you are seeking.
The Mentoring Program Committee currently is working to develop the web site, publicize it, and expand the list of mentors. The members of the Mentoring Program Committee are: Colleen E. Medill, Chair (Nebraska); Marina Angel (Temple); Michelle Simon (Pace); Jennifer Hendricks(Tennessee); Sandra Sperino (Cincinnati); Melissa Marlow (Southern Illinois); Nicole Huberfeld (Kentucky); Kerri Stone (Florida International);and Ruth Jones (Pacific).
The Section's Mentoring Program and the web site are a work in progress. If you have suggestions for the web site and improving the quality of the program, please contact any member of the Mentoring Program Committee.
The Section also is looking for individuals who want to be mentors. If you would like to be a mentor, please contact Colleen Medill for a Volunteer Mentor Application Form. Colleen can be reached at firstname.lastname@example.org.
This is a wonderful approach to mentoring and a great service to our community. And it's nice to see so many workplace profs helping to make it a reality.
June Unemployment Figures
The Department of Labor released its June employment data today. The unemployment rate rose to 9.2% from 9.1%. The private sector actually added jobs, although a less-than-expected 57,000. Many of those were offset by a loss of 39,000 government jobs. In short, the labor market still looks pretty stagnant.
July 7, 2011
Recently Published Scholarship: ABA J. LEL
Winter 2010 Volume 26, Issue 2.
- Wilma B. Liebman, The Editor’s Page, p. v.
- Marion Crain, An Imminent Hanging, p. 151.
- James J. Brudney, Gathering Moss: The NLRA’s Resistance to Legislative Change, p. 161.
- Ron McCallum, American and Australian Labor Law and Differing Approaches to Employee Choice, p. 181.
- Dorothy Sue Cobble, The Intellectual Origins of an Institutional Revolution, p. 201.
- James A. Gross, The NLRB: Then and Now, p. 213.
- Thomas A. Kochan, Rethinking and Reframing U.S. Policy on Worker Voice and Representation, p. 231.
- Carrie Menkel-Meadow, The NLRA’s Legacy: Collective or Individual Dispute Resolution or Not?, p. 249.
- Charles B. Craver, The Impact of Labor Unions on Worker Rights and on Other Social Movements, p. 267.
- Noah D. Zatz, Beyond Misclassification: Tackling the Independent Contractor Problem Without Redefining Employment, p. 279.
- Ruth Milkman, Immigrant Workers and the Future of American Labor, p.
- Steve Charnovitz, The U.S. International Labor Relations Act, p. 295.
- Richard B. Freeman, What Can We Learn from the NLRA to Create Labor Law for the Twenty-First Century?, p. 327.
- Emily Adams, Protecting America’s Financial Future: Why Courts Should Enforce ERISA’s Duties of Prudence and Disclosure, p. 345.
July 6, 2011
Verizon Settles EEOC Disability Suit Based on No-Fault Attendance Policy
The EEOC reports that Verizon has settled for $20 million a nationwide suit filed by the EEOC alleging that the company's no-fault attendance policy violates the ADA. Here's an excerpt from the EEOC press release:
The consent decree settling the suit, which is pending judicial approval, represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The EEOC charged that Verizon violated the Americans With Disabilities Act (ADA) by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. Under the challenged attendance plans, if an employee accumulated a designated number of “chargeable absences,” Verizon placed the employee on a disciplinary step which could ultimately result in more serious disciplinary consequences, including termination.
In addition to the $20 million in monetary relief, the three-year decree includes injunctions against engaging in any discrimination or retaliation based on disability, and requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences. Verizon will provide mandatory periodic training on the ADA to employees primarily responsible for administering Verizon’s attendance plans. The company will report to the EEOC about all employee complaints of disability discrimination relating to the attendance policy and about Verizon’s compliance with the consent decree. The company also agreed to post a notice about the settlement. Finally, Verizon will appoint an internal consent decree monitor to ensure its compliance. The settlement applies to certain Verizon wireline operations nationwide which employ union-represented employees.
NC Court: Durational Contracts Are a 2-Way Street
Elliott v. Enka-Candler Fire & Rescue Dep't, Inc. (NC Ct App 7/5/11) involved a firefighter promoted to Fire Chief. As a firefighter he was at-will; when he became Chief, he and the Department signed a contract for a period of years. Before the end of the contract, the Department fired him; he sued for his salary for the duration of the contract.
The Department moved for summary judgment, arguing that the former Chief had provided no consideration to support the term contract. Not so, said the trial court -- just as the Department had promised to employ the Chief for a term of years, the Chief had agreed to remain in the Department's employ for that same term of years, and that was adequate consideration to support the contract. The trial court denied the Department's summary judgment motion and entered summary judgment in favor of the former Chief. The North Carolina Court of Appeals affirmed.
Hat tip: Jon Harkavy.
Retirees Files Suit Against NFL and Players Union
Unsatisfied with their treatment under current negotiations, retired NFL players filed a complaint against the owners and current players. The retirees' claim is that the owners and players are violating antitrust laws by negotiating terms that affected the retirees following the union's decertification.
The retirees have some legitimate concerns that arise from their lack of a formal seat at the table, giving rise to complaints that their interests are being shortchanged. But they've got a hard legal argument to make. Under established law, retired employees are not considered part of a bargaining unit, but unions can negotiate retiree benefits. There's also a standing issue to cross as well. What the retirees do have is a good public relations argument, which is probably a significant reason for the suit.
Hat Tip: Michael Duff
Anne Kreamer, a former executive vice president at Nickelodeon and part of the founding team of Spy magazine, has published It’s Always Personal: Emotion in the New Workplace. Michelle Singletary reviews the book here for the Washington Post. Singletary writes that the book is about "what should be the rules and boundaries for showing how you feel while you work?". Singletary points out that Kreamer teamed up with advertising firm J. Walter Thompson to commission a poll to get perceptions on what leads to emotional incidents at work. The survey found:
- Nearly three in four respondents said they felt frustrated on the job.
- Forty-two percent of young men believed that anger could be an effective management tool. Only 23 percent of women felt that way.
- An overwhelming majority of workers said they had witnessed their bosses get angry about something.
- Women cry on the job more than men. Forty-one percent of women said they have cried at work, compared with just 9 percent of men. But because women are often embarrassed when the tears come, they are also the most critical of workplace weeping, Kreamer’s research shows. And yet, she says just about every woman she spoke with during her research admitted to having cried at work. And they all wished they hadn’t.
Hat tip: ADR Prof Blog.
July 5, 2011
John Truesdale, a long time NLRB employee and for several years Chairman, has died. His career at the Board spanned six decades, starting as a field examiner in Buffalo in 1948. He served as a Board member four different times, including once after being called into duty after retirement to become Chairman. From the NLRB announcement:
In a 1998 Washington Post article on his elevation to the Chairmanship, Mr. Truesdale was quoted as follows: "I spent my entire career trying to expedite the issuance of cases. I come in with no preconceived notions of policy but to reduce the amount of time it takes to issue decisions." During his tenure as Chairman, he used every tool at his disposal to expedite case processing, including his considerable interpersonal skills and sense of humor.
Truesdale was the first Chairman I worked under at the Board and I remember being struck with how he cared about the agency--both its people and mission.
Hat Tip: Dennis Walsh
Survey Says: LGBT Employees Should Announce Their Orientation
Our research suggests that many are hiding needlessly and that “out” workers may stand a better chance than closeted workers of being promoted (although there are still relatively few openly gay senior executives). This appears to be the case largely because closeted workers suffer anxiety about how colleagues and managers might judge them and expend enormous effort concealing their orientation, which leaves them less energy for actual work. Further, LGBT workers who feel forced to lie about their identity and relationships typically don’t engage in collegial banter about such things as weekend activities—banter that forges important workplace bonds. Some 42% of closeted employees said they felt isolated at work, versus only 24% of openly LGBT employees. These factors may explain why 52% of all closeted employees, but just 36% of out employees, believe their careers have stalled. The disparity is greatest among midlevel employees, with 70% of closeted middle managers reporting that they feel stalled, versus 51% of openly LGBT middle managers.
Unfortunately, announcing is still easier said than done for many employees.
Lobel & Amir on Noncompetes
Orly Lobel (San Diego) and On Amir (UC - San Diego Business) have just posted on SSRN their most recent empirical article on noncompete agreements. The article is Innovation Motivation: Behavioral Effects of Post-Employment Restrictions; here's the abstract:
Traditional economic models view post-employment restrictions as necessary constraints stemming from the assumption that absent such contractual protections, employers would under-invest in R&D and employee training. This article enriches the analysis of human capital investment by developing a dyadic-dynamic investment model, adding both a behavioral dimension of constrained individuals and the aggregate dimension of mobility over time. The article reports original experimental research demonstrating that contractual background affects motivation and performance. The findings reveal that when tasks involve pure effort and are relatively easy to perform, individuals will abandon the tasks at higher rates, spend less time on task, and overwhelmingly more frequently fail to find the correct solution when bound by post-employment restrictions. At the same time, the findings reveal that with tasks that invoke internal talent and creativity rather than pure effort some of these effects, including time on task and quality of performance, largely disappear. Significant gaps in task completion remain even for more creative tasks. The article links recent empirical evidence about positive spillovers with a behavioral analysis that suggests further positive effects, together offering a richer understanding of the costs and benefits of post-employment contractual and regulatory restrictions.
Gould's Bargaining with Baseball: Labour Relations in an Age of Prosperous Turmoil
William Gould (former chairman of the NLRB and professor emeritus at Stanford Law) has published: Bargaining with Baseball: Labor Relations in an Age of Prosperous Turmoil. (A link to the order form for the book can be found here).
From the press release:
In 1995, William B. Gould, IV, then chairman on the Nationa Labor Relations Board, cast the deciding vote to obtain the injunction that ended the longest strike in baseball history. Sixteen years of peaceful relations between baseball labor and management have followed, as well as unprecedented prosperity in a relationship that previously endured 30 years of strikes and lockouts. This study, which clearly illustrates the practical impact of law on America's pastime, considers the full, 140-year sweep of labor-management relationships and conflict, exploring player-owner disputes, the development of free agency, the collective bargaining process, and the racial integration of baseball, among other topics. It concludes with a discussion of the "steroids era," the problem with maintaining Jackie Robinson's legacy in the 21st century, and globalization.
As one lifelong fan of the game to another, I look forward to reading Bill's book and to my Phillies besting Bill's Red Sox in this year's World Series!
Lurie on the ERISA case of Cigna Corp. v. Amara
Alvin Lurie recently prepared a critique of the Breyer and Scalia opinions in U.S. Supreme Court ERISA case of Cigna Corp. v. Amara. This piece was initially posted as a “guest article” on BenefitsLink. Here is the link and a snippet:
The CIGNA decision (CIGNA Corp. v. Amara et al., 2011 U.S. LEXIS 3540, 179 L.Ed.2d 843), handed down by the Supreme Court on May 16, did not have the trappings of a cause celebre — just a holding under ERISA that misstatements in the summary plan description of a pension plan did not provide the grounds for a recovery at law. The holding of the Court was unanimous, all eight justices participating in the decision agreeing on the SPD issue. (The 6–2 division of the Court noted in the title of this article did not pertain to the SPD issue, but rather to a minority view of the grounds on which the decision should — or, more accurately should not — be rested.) The SPD holding in itself may be surprising to some, perhaps, albeit not earth-shaking. But the 6–2 split of the majority and concurring opinions will cast a long shadow, and might even foretell a breakdown in the exquisitely detailed and compartmentalized provision of civil remedies available for the enforcement of ERISA's "reticulated" provisions (to recall the Supreme Court's eloquent term for ERISA on one of its first encounters with the statute in the leading Nachman case). Therein lies the real interest in and importance of the case.
Check out the whole piece. Very interesting.
July 4, 2011
The pancake biz is more complicated than you might think. In EEOC v. Management Hospitality of Racine, Inc., the EEOC sued on behalf of a number of IHOP servers at the Racine IHOP alleging sexual harassment. It named three defendants:  The company that owned the IHOP in question (“MHR”);  its only shareholder Salauddin Janmohammed, (who was something of a pancake magnate, owning 21 other IHOPS); and  Flipmeastack Inc., a firm that provided management services to the IHOP in question and 17 others. Flipmeastack was owned by Victoria Janmohammed, Salauddin’s wife. Small world.
Liability was found by a jury (under a stipulation that the judge could later figure out exactly who was liable). Everybody agreed that MHR was an employer and thus subject to an injunction. However, MHR had dissolved, which left it unenjoinable. No problem, however: the trial judge found that Flipmeastack was also an employer because it exercised control over the workplace at the Racine IHOP.
So far, so good. But Saluddin had sold the Racine IHOP prior to trial and Flipmeastack no longer managed it. Nevertheless, the EEOC asked for, and the court entered, an order against harassment at other Flipmeastack-managed IHOPs (presumably owned by Salauddin, but probably through separate corporations). The order, in part, required Flipmeastack to post a notice about the judgment in every store it managed. It hadn’t complied, which led to the current civil contempt proceeding.
This resistance to a pretty innocuous requirement (the notices didn’t have to be posted where customers would see them) makes you wonder about the pervasiveness of sexual harassment in the pancake world. In any event, Flipmeastack had an excuse for its noncompliance: Victoria claimed that her company could not comply with the injunction without her husband’s permission (he being the owner of the IHOPs and she only running the management company). Needless to say, Salauddin denied permission.
Judge Adelman neatly avoided this defense by holding that, although Flipmeastack may have lacked sufficient control to post the notices without the husband’s permission, it was nevertheless in civil contempt because the company still had control over whether it would continue to do business with the husband.
But a more interesting aspect was the judge finding the husband guilty for aiding and abetting the violation of the injunction. One wonders, however, whether a truly independent IHOP owner could be held in contempt merely for exercising his rights to control what is posted in his own restaurant. In short, aiding and abetting in this case may turn on Salauddin’s role as a defendant in the original lawsuit. But the court wasn’t clear on the extent to which “third parties” can be held to an injunction and whether something more than Salauddin’s knowledge of the injunction was necessary to bind him to cooperate with Flipmeastack.
There’s probably a lesson here somewhere, mostly about what my colleague Tim Glynn calls “disaggregation” by employers. There were undoubtedly benefits of in the Janmohammeds structuring the businesses the way they did, and one of those benefits might be the limitation of government enforcement efforts. Fortunately, in this case, the court saw through the various corporate entities to enforce what, really, was a pretty innocuous order.
Thanks to Kate Stone, who also located the IHOP photo.