January 21, 2011
2010 Union Data
The Bureau of Labor Statistics has just released its 2010 figures for union coverage. Overall union density went down from 12.3% to 11.9%; in the private sector, union density went down from 7.2% to 6.9%, and in the public sector, it went from 37.4% to 36.2%. Among the other highlights:
--The union membership rate for public sector workers (36.2 percent) was
substantially higher than the rate for private sector workers (6.9 percent).
--Workers in education, training, and library occupations had the highest
unionization rate at 37.1 percent.
--Black workers were more likely to be union members than were white, Asian,
or Hispanic workers.
--Among states, New York had the highest union membership rate (24.2 percent)
and North Carolina had the lowest rate (3.2 percent).
For more detailed compilations of the 2010 union membership figures, as well as historical data, you can see unionstats.com.
January 20, 2011
DOL Seeks Comments on Nursing Mothers Law
As we have noted before, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide space and time for nursing mothers to express milk. This summer, the DOL issued a fact sheet explaining the provision and interpreting it. And then on December 21, the DOL asked the public for comments on the interpretation in the fact sheet.
This is just a reminder that the deadline for comments is approaching: it's February 22, just over a month away. Here are the details from the news release:
WHD News Release: [12/21/2010]
Contact Name: Dolline Hatchett
Phone Number: (202) 693-4651
Release Number: 10-1764-NAT
US Labor Department seeks comments on nursing mothers law
WASHINGTON — The U.S. Department of Labor's Wage and Hour Division is requesting public comments on its preliminary interpretations of a new provision of the Fair Labor Standards Act that requires employers to provide nursing mothers with reasonable break time and a private space for expressing breast milk while at work. This new provision — the Break Time for Nursing Mothers Law — became law when the Affordable Care Act was signed by the president in March 2010. The provision responds to a reality that many women face when they return to work after having a baby.
"Many women who want to continue breastfeeding their children simply can't because they do not have the necessary accommodations to do it," said Secretary of Labor Hilda L. Solis. "What the department is seeking to do is to develop guidance for employers that will assist them in complying with this new law and that will support women who choose to continue nursing once they return to work. And with input from the public — including working mothers and employers — we'll be successful in doing that."
The department will accept public comments in response to a request for information on its preliminary interpretations for the next 60 days — with a deadline of Feb. 22, 2011 — via http://www.regulations.gov.
In order to increase awareness of the new law and provide the public with access to additional resources related to workplace lactation programs, the department has launched a Web page at http://www.dol.gov/whd/nursingmothers. Employers and employees are encouraged to visit the site. It provides general information and guidance that has been issued by the department on the new break time requirements for nursing mothers in the workplace, as well as a compilation of resources that employers, employees and other interested stakeholders might find useful as they develop workplace lactation programs. Many employers already have successfully implemented lactation programs using these and similar resources.
The Wage and Hour Division is responsible for administering and enforcing a number of federal labor laws, including the FLSA. The act's nursing mothers provision requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk. Employers also are required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.
For information on federal laws concerning wage and hour issues, visit http://www.dol.gov/whd or call the Wage and Hour Division's toll-free helpline at 866-4US-WAGE (487-9243).
In my view, the DOL's interpretation is quite reasonable, balancing the valid concerns of employers with the needs of women who are still breastfeeding (and their children). I encourage anyone with an interest to take a look and provide a comment.
I was lucky enough to live in a state that passed similar legislation at the time I was breastfeeding my children, and although there were some transition challenges, the time and space for breaks to express milk made a world of difference for me, for other women working for my employer, and for my employer, too. We didn't have to choose between work and feeding our kids breastmilk, and there was significantly less disruption for our employer, which did not have to cover our work (or temporarily replace us) while we took longer leave. And though my employer was concerned about the practical issues--the space, who could use it, how it could be accessed, how to cover the time of the break--those concerns turned out to be easily dealt with. It was really a win-win, or maybe a win-win-win, if you include the kids, too.
Hat tip: Deborah Widiss
National Federation of the Blind Jacobus tenBroek Disability Law Sympsosium
Thanks to Mark Weber (DePaul) for bringing to my attention an interesting upcoming Symposium. The National Federation of the Blind has just announced its 2011 Jacobus tenBroek Disability Law Symposium, which takes place April 14-15.
Lou Ann Blake at NFB is the contact person. The relevant link is: http://www.nfb.org/nfb/Law_Symposium.asp.
Mark comments that this is a truly useful conference for anyone involved in legal issues that pertain to disability. More importantly, my good friend, Michael Waterstone (Loyola-LA), among others, will be speaking!
January 19, 2011
Unanimous US Supreme Court: Constitutional Right to Informational Privacy Not Violated by NASA Background Check
Much thanks to Ross Runkel over at Employment Law Memo for posting this quick summary of the NASA v. Nelson informational privacy case that was decided this morning.
Here is Ross' summary:
The US Supreme Court unanimously decided that NASA's standard background check, as applied to contract employees, does not violate a constitutional right to informational privacy.
Current employees of contractors working at NASA's Jet Propulsion Laboratory must complete a standard background check (which has long been used for prospective federal civil servants). The process includes a questionnaire asking whether the employee has "used, possessed, supplied, or manufactured illegal drugs" during the past year; if so, the employee must supply information about "treatment or counseling received." Employees must also sign a release allowing the Government to inquire of references about "any reason to question" the employee's "honesty or trustworthiness."
The Court held that the background checks are similar to those used in the public and private sectors for many years, and are reasonable in light of the Government interests at stake. The Court rejected arguments that the Government must show that the questions are "necessary" or are the least restrictive means of furthering its interests. Any information collected is protected from unwarranted disclosure by the Privacy Act.
What I found most interesting is that the language of the test is similar to that used in the recently decided Quon decision (involving the privacy right of a police officer in his employer-provided textting device) and further connects workplace privacy interests between the public and private sector.
Also, of much importance, the Court (in a majority opinion by Justice Alito) unanimously punted on whether there is a right to informational privacy in the constitution, a right that had not been given much play since Whalen v. Roe and Nixon in the late 1970s (Justices Scalia and Thomas both wrote separate concurring opinions disagreeing with the majority approach and would instead provided a definitive answer to the question of whether there is a constitutional right to informational privacy; that answer would be "no.")
In any event, the Court "[a]ssum[ed], without deciding, that the Government’s challenged inquiries implicate[d] a privacy interest of constitutional significance," but did not address this important right in any more detail. The employees lost here even if there was such a right. However, because the Court punted here like it did in Quon look for this constitutional right to be raised again when employers do not act in a reasonable manner in seeking to find out private information from prospective or current employees.
January 18, 2011
Duru's Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL
Congratulations to Jeremi Duru (Temple) on the publication of his impressive new book: Advancing the Ball: Race, Reformation, and the Quest for Equal Coaching Opportunity in the NFL (Oxford University Press).
From the press release:
Two days before Super Bowl XLI in 2007, the game’s opposing head coaches posed with the trophy one of them would hoist after the contest. It was a fairly unremarkable event, except that both coaches were African American--a fact that was as much of a story as the game itself. Head coaching in the NFL had long been a whites-only business, and just a few years earlier such a matchup was unthinkable. In 2002, however, two lawyers, Cyrus Mehri and Johnnie Cochran, together with a few grizzled NFL veterans, began a movement that would expand opportunities for coaching aspirants of color in the NFL and ultimately transform the League’s racial landscape.
Featuring an impassioned foreword by Coach Tony Dungy, Advancing the Ball offers an eye-opening, first-hand look at how a few committed individuals initiated a sea change in America’s most popular sport and added an extraordinary new chapter to the civil rights story.
More information on the book is available at www.advancingtheball.com. I look forward to reading this fascinating book. Everyone should check it out!
And a side of hush puppies with that....
In conducting independent research, I found South Carolina cases holding that an employee's breach of his duty of loyalty works a forfeiture of the employee's right to claim any compensation under both statutory and common law theories. If this were the case, all of [the employees'] breach of contract claims would be unsustainable. But Hampshire did not rely on this line of cases or this argument. Although I love shrimp and grits, I do not pretend to be an expert in South Carolina employment law and will not rely on an argument an aggressive litigant like Hampshire could have made but did not. Given my lack of familiarity with South Carolina contract law, I choose to address the merits of each of [employee's] counterclaims based on the arguments the parties actually made.
Hampshire Group, Ltd. v. Kuttner, 2010 Del. Ch. LEXIS 144 (Del. Ch. July 12, 2010) (emphasis added; numerous citations omitted). Admittedly, this passage is found in footnote 342 of a 120-page opinion, so Vice Chancellor Strine is perhaps to be forgiven for not exploring further the fascinating question of when an employee can be required to forfeit compensation as a result of various breaches of duty, Further, since it's by no means clear to me that the faithless servant doctrine is a matter of "contract law" (in South Carolina or elsewhere), discretion might have been the better part of valor for the Vice Chancellor.
Bodie on Requiring Disclosures Prior to Representation Elections
Matt Bodie (St. Louis U.) has just posted on SSRN his article (forthcoming FIU L. Rev. symposium issue) Mandatory Disclosure in the Market for Union Representation. Here's the abstract:
For over sixty years, the National Labor Relations Board has followed the “laboratory conditions” doctrine in its regulation of representation elections. According to the doctrine, the Board must provide workers with an electoral “laboratory” in order to determine the “uninhibited desires” of the employees. Elections are vacated and conducted anew if the winning party violated the laboratory conditions. The laboratory conditions doctrine suggests an active and vigorous role for the Board in providing employees with the proper election environment. However, the Board’s regulation has largely focused on keeping out electoral impurities and has done little to make sure employees have enough information to make the most efficient decision.
In this contribution to the symposium “Whither the Board? The National Labor Relations Board at 75,” I examine how the Board could use a mandatory disclosure regime to provide information to employees when making their representation decision. The essay first examines the extent to which critical information is already disclosed through the NLRA as well as the Labor-Management Reporting and Disclosure Act (LMRDA or Landrum-Griffin Act) and federal securities laws. The essay then outlines how the Board could pair this information with a limited scheme of information disclosure to provide a base level of election-related information to employees. The base level of disclosure will provide an informational foundation for employees in making their representation decisions.
This is a terrific article -- one that calls on Matt's unique expertise in both labor and corporate law. Matt's mandatory disclosure proposal works both ways -- he suggests, for example, that unions be required to disclose dues and fees, and the union's organization structure; he suggests that employers be required to disclose conflicts of interest with the union, financial information, and the like.
January 16, 2011
Recently Published Scholarship
- Kathleen Kim, The Coercion of Trafficked Workers, 96 Iowa L. Rev. 409 (2011).
- Todd A. Palo, Minimum Wage, Justifiably Unenforced?, 35 Seton Hall Legis. J. 36 (2010).
- Grayson Colt Holmes, The New Employment Verification Act: The Functionality and Constitutionality of Biometrics in the Hiring Process, 43 Connecticut L. Rev. 673 (2010).
- Sue Landsittel, Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII, 104 Northwestern U. L. Rev. 1147 (2010).
- Sara Witt, The Status of Graduate Students and That of Medical Residents Under the National Labor Relations Act As a Starting Point for Crafting a Statutory Definition of "Employee", 59 Case Western Res. L. Rev. 1221 (2009).
Scholar-in-Residence Arbitration Opportunity
The International Arbitration Group at Wilmer Cutler Pickering Hale and Dorr LLP in London is pleased to announce that it is accepting indications of interest for its Scholar-in-Residence Program for the academic year 2011-2012 and the summer of 2011. Indications of interest are invited from all full-time legal academics, particularly in the fields of international arbitration and litigation, private international law, public international law, and comparative law, regardless of seniority or country of qualification.
The Scholar-in-Residence Program brings talented professors, lecturers and and other academics from all jurisdictions to our London office to collaborate with our international arbitration team on both professional matters and academic projects and to contribute generally to the intellectual life of the office. (A description of our International Arbitration Group is here. Visiting scholars are provided with an office, use of library and other research facilities, and secretarial and other support services, as well as an honorarium in appropriate cases. Specific terms and conditions, including with regard to the length of residence and weekly time commitments, are determined on a case-by-case basis in light of program participants’ experience and needs, and other academic and professional engagements. Past participants have included distinguished academics in the fields of international dispute resolution, international trade and public international law.Participants have been in residence for periods ranging from 1 month to 9 months, with time commitments ranging from a few hours per week to full-time.
Interested academics are invited to send their resume/CV to Phillipa.Keast, together with a brief indication of preferred starting and ending dates of residence and contemplated time commitments. General inquiries regarding the Scholar-in-Residence Program, including for future years, are also invited.