Friday, July 22, 2011
President Obama announced today that the Pentagon has formally certified that the military is ready to end the "don't ask, don't tell policy." Per the legislation, sixty days after this certification, the policy will no longer be in effect, and gay men and lesbians will not have to hide their sexual identities in order to serve our country. Despite some concern by some over the course of the debate on this repeal, the Washington Post reported,
Since the new law was adopted in December, military officials have reported little resistance in the ranks to the pending repeal of “don’t ask, don’t tell,” saying that social acceptance of gay rights has become more entrenched since the policy was adopted.
Currently, the primary thing affected by the repeal is the issue of service. The military still has to work out issues like potential spousal benefits and housing for gay servicemembers who are married.
What a hugely important step forward for one of the largest employers in the country.
The U.S. Department of Labor’s Employee Benefits Security Administration is soliciting nominations to fill five three-year vacancies on the Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. The deadline to submit nominations is Sept. 16.
The 15-member council provides advice on policies and regulations affecting employee benefit plans governed by the Employee Retirement Income Security Act. Members serve for staggered three-year terms and are appointed by the secretary of labor to represent specified groups and fields that are involved in employee benefits. The council meets at least four times a year and makes recommendations to the secretary regarding functions carried out under ERISA.
Nominations are being accepted for one vacancy each to represent the fields of employee organizations, employers, corporate trust, investment management and the general public. Interested persons or organizations may nominate qualified individuals for membership.
Thursday, July 21, 2011
A novel response to picketers takes on a dangerous angle because of the current weather. Workers picketing Chicago's Park Hyatt Hotel claim that outdoor heat lamps (the kind you see on outdoor patios in the winter) were turned on while they were picketing--and then turned off when the media arrived. Given that Chicago saw a high of 99 degrees yesterday, that's a pretty harsh response and, if proven, would likely be an unfair labor practice.
No doubt we'll be seeing a charge filed with the NLRB shortly.
Hat Tip: Michael Duff
Reports are out that the NFL lockout may soon be ending. The owners have voted to conditionally lift the lockout, with the condition being the players' ratifying a tentative agreement. If that happens, the union will re-certify, training camps will open, and--most significant for the large number of undrafted NFL wannabees--free agency will open back up. According to the Washington Post, the highlights of the agreement include:
The collective bargaining agreement would be for 10 years, without any opt-opt clauses, and would give the players just less than half the sport’s revenue, about 46.5 percent to 48 percent, under a salary cap system. It would set the salary cap for the upcoming season at approximately $120 million per team for players’ salaries, not counting an additional $21 million per club for players’ benefits. It would require each team to spend 90 percent or more of the annual salary cap in cash, and it would include a rookie pay system to curb the amount of guaranteed money in rookies’ contracts.
The deal would keep the regular season at 16 games per team, shelving the 18-game season proposed by the league, and would reduce offseason workouts for players and limit hitting in some practices. It would restore the requirement for players with expired contracts to be eligible for unrestricted free agency to four seasons of NFL experience, down from the six seasons required last year in a season without a salary cap.
I haven't seen when exactly the players will vote, but it's likely to be soon and, given the lack of open opposition to the agreement thus far, it's likely to be positive.
Wednesday, July 20, 2011
We mentioned last week that several companies have refused to hire -- or impose health-coverage surcharges on -- employees who smoke. Jennifer Clemons sends this Washington Post blog post arguing against such policies. Here's an excerpt:
As Lewis Maltby, the president of the National Workrights Institute, told the New York Times in February, “The number of things that we all do privately that have negative impact on our health is endless. If it’s not smoking, it’s beer. If it’s not beer, it’s cheeseburgers. And what about your sex life?”
Most of all, employers asking employees to take a urine test to prove they’re not smokers should contemplate what that says about the level of trust they have in the people who work for them.
Lise Gelernter (Buffalo) has just posted on SSRN her article How Much Power Does a Labor Arbitrator Have? What the Latest Court Decisions Mean for Arbitrators, Employers, Unions and National Labor Policy?. Here's the abstract:
In 2009, in 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court threw a curve at the collective bargaining world by holding (5-4) that unions could waive the rights of individual bargaining unit members to go to court to resolve employment-related statutory disputes and, instead, could require that such disputes be arbitrated. Pyett raised the specter of the Court taking the final step in merging the legal treatment of arbitration in the collective bargaining world with the treatment of non-labor arbitration, despite the clear points of tension between the basic public policy goal behind labor arbitration, which is to promote industrial peace, and the basic public policy goal behind all other kinds of contractual arbitration, which is to support and encourage private parties' freedom to contract for alternative ways in which to resolve contractual disputes.
This paper clarifies what the legal trends really are and what they mean for the 'big picture' in arbitration as well as for labor arbitrators and the parties who appear before them. After reviewing the history of labor and non-labor arbitration and outlining and comparing the core principles of each type of arbitration, I trace how recent arbitration jurisprudence has crossed the historical divide between labor and commercial arbitration and explore the problems that this creates for labor arbitration as an institution. The trend towards the convergence of labor and non-labor arbitration is not unstoppable, however, and I highlight the ways in which the courts have continued to view arbitration under collective bargaining agreements and non-labor contracts as dichotomous systems with different rules. I also discuss how to deal with the reality of the new hybrid commercial/labor arbitrator that Pyett appears to contemplate and address the ways in which employers, employees and unions can help to retain the procedural and collective bargaining benefits of labor arbitration.
This article discusses the circumstances in which employees can be, or can insist on being, indemnified by their employer against expenses or liabilities incurred in connection with their job. It suggests that there is scope at common law for a broader view as to the 'necessity' for an implied right of indemnification. It also questions whether the restrictions imposed by statutes such as the Corporations Act on the indemnification of employees who are also directors or officers of a corporation should be re-evaluated so as to better align with the common law position.
Tuesday, July 19, 2011
Readers may remember the years-long battle over whether the use of inflatable rats by unions constituted illegal picketing-like action, or a lawful handbilling-like informational technique. The NLRB recently concluded that inflatable rats and other animals may be lawful, depending on the circumstances. In an ironic twist, the rat pictured here appeared in front of NLRB headquarters today (the sign says "Stop The NLRB's Job-Killing Agenda").
Maybe it's a sign of the times, but I'm just glad to see that the NLRB's "job-killing" opponents actually got the law right for once.
Hat Tip: Dennis Walsh & Jason Walta
Susan Bisom-Rapp (Thomas Jefferson) brings to our attention this call for papers for a Young Scholars' Workshop to be held at the Tenth International Conference in Commemoration of Professor Marco Biagi.
The conference is an annual event, which next takes place March 19 - 22, 2012 at the Marco Biagi Foundation, University of Modena and Reggio Emilia, in Modena, Italy. This year's Young Scholars' Workshop, which will be held on March 22, 2012, is aimed at PhD (or other doctoral degree) candidates and post-doctoral researchers holding post-doctoral grants or fellowships.
Susan is serving on the selection committee, along with Professors Tindara Addabbo and Tommaso Fabbri of the University of Modena and Reggio Emilia.
The call specifies that papers may cover any of several topics related to labor relations, including: law, industrial relations, labor economics, organizational theory, and human resource management. There is a special preference for interdisciplinary work and/or work that is comparative in the sense of canvassing more than one national jurisdiction.
Questions may be sent to Iacopo Senatori, PhD at the Marco Biagi Foundation: firstname.lastname@example.org.
Monday, July 18, 2011
The Hofstra Labor & Employment Law Journal invites submissions for its Fall 2011 issue on all topics relating to labor and employment law. The issue is tentatively scheduled for publication in early December 2011.
Additionally, we are specifically seeking articles on the topic of the intersection between labor and employment law and the financial sector for our symposium to be held in November 2011. While we prefer completed papers, authors interested in the symposium but whose articles are not yet ready for publication are encouraged to contact us as we are still seeking participants/contributors.
We ask that all articles be submitted by August 15, 2011. Please submit your manuscripts (along with any appropriate supporting documents) or any questions to Ashley Behre, Managing Editor of Articles, at email@example.com. Thank you for your interest.
Earlier this month, the Families and Work Institute issued a new study on work-family conflict and men as part of the National Study of the Changing Workforce: The New Male Mystique. About two years ago, the national study revealed that a higher percentage of men ( 60% in dual earner households) than women (47% in dual earner households) were reporting work-family conflict. The current study seeks to answer why that is, and the authors concluded:
We suggest that the increase in work-family conflict experienced by men is a symptom of the new male mystique—today’s male version of the “feminine mystique” coined by Betty Friedan in 1963 to describe how assumptions about women finding fulfillment in traditional domestic roles created tension and conflict for a number of women, preventing them from finding their identities and opportunities for meaningful work. Applying Friedan’s reasoning to men, the “traditional male mystique” would reflect the notion that men should seek fulfillment at work and strive to be successful as financial providers for their families. We use the term new male mystique to describe how traditional views about men’s role as breadwinners in combination with emerging gender role values that encourage men to participate in family life and a workplace that does not fully support these new roles have created pressure for men to, essentially, do it all in order to have it all.
The study released a number of findings. Here are a few:
- Work-family conflict is not simply a function of hours spent working. Job characteristics and psychological factors—including attitudes about work, family and appropriate gender roles—all contribute to men’s work-family conflict.
- Work-centric men are more likely to experience work-family conflict than dual- or family-centric men.
- Men who hold traditional gender role values—i.e., strongly agree the man should earn the money and the woman should take care of the home and children— are also more likely to experience work-family conflict.
The recommendations included more flexible work arrangements for men and more cultural support for men to take advantage of those.
Some of these findings suggest a reason for the conflict beyond the lack of flexibility and supportive bosses that we expect. I would suggest, in fact, that analogizing to the Feminine Mystique is completely backward. Betty Friedan's book was about how many women were not fulfilled by the domestic role they were supposed to glory in. Here, the converse is true. The men feeling the greatest amount of conflict don't seem to be rejecting the breadwinning role that they are supposed to relish--they instead feel the conflict when home encroaches.
In other words, the findings suggest that more men than women are reporting feeling the conflict. To the extent that some significant number of men don't expect to feel any conflict because they see themselves as primarily breadwinners, those men are going to experience the competing demands as conflict rather than as the balance they expected to strike. It seems from the findings that men who expect to prioritize their families as much as or more than work don't report the conflict as much. And perhaps enough women have just been struggling with that expectation issue for so long that they tend to expect the competing demands and so may not experience it as conflict to the same extent.
Maybe it would be a good time to revisit a radical experiment in work-life balance conducted forty years ago by the Norwegian government where couples split a single job. It's reported on in this Time story from last October and sounds really interesting. Most of the couples continued the arrangement after the study and remembered the time as strengthening their family even though they were not particularly well off economically.
Our current economic situation might help reset expectations, although so far it seems to be mostly heightening financial stress on people. On that economic front, legislation has been introduced that while not focused on partners within a family would promote state worksharing programs. The Layoff Prevention Act of 2011, focused on keeping people in jobs with reduced hours, was introduced earlier this month as H.R. 2421. The legislation would provide workers whose hours are reduced with unemployment insurance benefits to account for the reduced hours.
Readers of this blog are well aware of the looming public pension crisis -- state and local governments have significantly underfunded their pension plans, and the ecomomic pain of the last couple of years has made it all but impossible for them to catch up. So far, the most common reaction of state and local goverments has been to hope the problem will go away on its own. Has anyone seen any proposals for what right-minded state and local governments should be doing to address the pension crisis? The obvious answer is to fully fund their pension obligations, but for many, that may not be fiscally (or politically) possible. If you've seen thoughtful proposals for moving forward, please add a comment to this post.
Bradley Areheart (Stetson) has just posted on SSRN his article (forthcoming Alabama L. Rev.) The Anticlassification Turn in Employment Discrimination Law. Here's the abstract:
The distinction between antisubordination and anticlassification has existed since the 1970s and been frequently invoked by scholars to advocate for certain readings of antidiscrimination law. The anticlassification principle prohibits practices that classify people on the basis of a forbidden category. In contrast, the antisubordination principle allows classification (or consideration of, for example, race or sex) to the extent the classification is intended to challenge group subordination.
While most scholars writing about antisubordination and anticlassification have done so in the context of equal protection, this Article for the first time systematically applies antisubordination and anticlassification values to assess recent developments in employment discrimination law and explain how they tell us something critical about the trajectory of employment discrimination jurisprudence. In 2009, the Supreme Court decided Ricci v. DeStefano, a landmark Title VII case, and in 2008 Congress passed two new laws: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). These changes potentially undermine the very normative foundation of employment discrimination law.
This Article argues that the major employment discrimination statutes have until recently had a substantial antisubordination orientation, in that they were designed to respond to a history of discrimination and incorporate many provisions that expressly take account of forbidden traits (through doctrines like disparate impact and reasonable accommodation). This Article then explains how recent changes to the Americans with Disabilities Act (ADA), Title VII, and the enactment of GINA, may imperil the underlying normative foundation of employment discrimination law by turning toward and emphasizing anticlassification values at the expense of employment discrimination’s antisubordinationist foundation. The Article concludes by suggesting amendments and other protections that will, in light of the recent changes, preserve the valuable antisubordination foundations of employment discrimination law.
- Jeffrey M. Hirsch, Communication Breakdown: Reviving the Role of Discourse in the Regulation of Employee Collective Action, 44 U.C. Davis L. Rev. 1091 (2011).
- Stacy A. Hickox, The Underwhelming Impact of the Americans with Disabilities Act Amendments Act, 40 U. Baltimore L. Rev. 419 (2011).
- Diane Norcross, Separating the Employee from the Citizen: The Social Science Implications of Garcetti v. Ceballos, 40 U. Baltimore L. Rev. 543 (2011).