Friday, August 12, 2011
Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy. The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors. In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance. For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”
Some patrons took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful. One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."
As it turns out, the assumption that such conduct is inconsistent with the law is a mistake. For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.
Thursday, August 11, 2011
There is a widely-shared belief that the Supreme Court’s interpretation of the Federal Arbitration Act has resulted in a doctrine that is far too solicitous of arbitration and not sufficiently solicitous of state lawmaking power. That may be so, but there is one provision of the FAA, the savings clause, that the Court has interpreted to permit the application of state law to invalidate agreements that would otherwise be enforceable under the FAA. This Article examines the savings clause.
The Court’s interpretation of the savings clause is dicta, and a better reading is that the savings clause authorizes federal courts to create federal common law to govern the enforcement of covered arbitration agreements. That alternative interpretation is consistent with the Court’s treatment of the rest of the statute, it is consistent with an analogous regulatory scheme, – federal common law regulation of the enforcement of collective bargaining agreements – and it reflects a division of lawmaking authority that would have been familiar to the Congress that passed the FAA in 1925. Moreover, while there are no doubt legitimate state interests in regulating arbitration agreements and guaranteeing parties a judicial forum for the assertion of certain rights, that alone is not a sufficient justification for requiring the application of state law to FAA-covered arbitration agreements. Like it or not, Congress has the authority to regulate the enforcement of arbitration agreements in interstate commerce, and a necessary consequence is the displacement of some overlapping state law.
A federalized savings clause would result in the creation of a uniform body of arbitration law, and that body of law could prove to be at least as effective, and perhaps even more effective, in addressing the major arbitration issue of our time – the imposition on relatively weak parties, like consumers and employees, of agreements that effectively deprive those parties of the right to assert their federal or state law rights. This existing but undeveloped body of federal law helps shed light on the Supreme Court’s recent decision in AT& T v. Concepcion and helps chart a post-Concepcion approach to the issue of “lopsided” arbitration agreements.
The article makes a persuasive case that this is a plausible interpretation of the FAA. The effect of this interpretation would certainly be to federalize and standardize interpretation of the statute. But given the current Supreme Court's love-affair with arbitration, the effect also would be to hand the Court a tool which it then likely would use to eviscerate the few protections that state law has until now provided to weak parties such as consumers and employees.
Employee Rights and Employment Policy Journal
Volume 15, Number 1/2011
Table of Contents
- Susan Bisom-Rapp, Introduction: Decent Work in a Post-Recessionary World, p. 1.
- Janice R. Bellace, Achieving Social Justice: The Nexus Between the ILO's Fundamental Rights and Decent Work, p.5.
- Roger Blanpain, Decent Work in the European Union: Hard Goals, Soft Results, p. 29.
- Susan Bisom-Rapp, Andrew Frazier, Malcolm Sargeant, Decent Work, Older Workers and Vulnerability in the Economic Recession: A Comparative Study of Australia, the United Kingdom, and the United States, p. 43.
- Michael J. Zimmer, Unions & the Great Recession: Is Transnationalism the Answer?, p. 123.
- Peggie R. Smith, Work like Any Other, Work Like No Other: Establishing Decent for Domestic Workers, p.159.
- Timothy P. Glynn, Taking the Employer Out of Employment Law? Accountability for Wage and Hour Violations in an Age of Enterprise Disaggregation, p. 201.
- Yuval Feldman, Amir Falk, Miri Katz, What Workers Really Want: Voice, Unions, and Personal Contracts, p. 237.
Wednesday, August 10, 2011
In its recent Mezonos Maven Bakery case, the NLRB was faced with a variation on the Hoffman Plastics problem (see here for the Board's press release). Unlike Hoffman, however, in Mezonos, the employer was found to have been aware of the employees' undocumented status before hiring. In a unanimous decision (with Member Becker recused), the Board concluded that Hoffman controls and precludes an award of backpay. However, Chairwoman Liebman and Member Pearce issued a concurring opinion, in which they lamented the policy implications of Mezonos and Hoffman. They also noted that, under different circumstances, alternative monetary remedies could be appropriate, such as requiring employers in these situations to pay an equivalent backpay award into a fund--which could, for example, give money to employees awarded backpay that has been uncollected--but not to the undocumented workers.
I think this was probably the correct result given the strong language of Hoffman. But the Board did have other options. For instance, the ALJ recommended a backpay order because in Mezonos, the employer--rather than the employee, as in Hoffman--violated immigration laws. The Board could've picked up on that distinction and argued that, in combination with its role in protecting employee rights, it had the power to order backpay despite Hoffman (a similar sentiment has been expressed before, such as the dissent in Loehmann's Plaza, 316 NLRB 109 (1995)). It would likely be flipped on appeal, but it would've been another way for the Board to indicate its view of Hoffman. On the other hand, given the attention the Board has been receiving already, it's hard to fault Liebman and Pearce for expressing their views in a concurrence and leaving it at that. Although I'll be interested to see if the alternative monetary remedy award gets used, as it raises a host of issues, including whether such a remedy is consistent with Hoffman and whether it amounts to a "fine" that the NLRB lacks the power to order.
Hat Tip: Dennis Walsh (who also noted the Loehmann's Plaza dissent)
The California nurses' union split still continues to make news. This time, the NLRB has decided to rerun an election involving about 43,000 employees. In the initial election, SEIU garnered more votes than "no union" or its splinter union, NUHW. However, the Board (with Member Becker recusing himself) upheld an ALJ's recommendation for a new election. The upheld objections were that SEIU threatened that Kaiser wouldn't provide a scheduled raise and bonuses if the NUHW won.
Things between the two unions have been nasty thus far, so expect the sparks to continue to fly.
- Maila Labadie, Preemployment Drug Testing in Lanier v. City of Woodburn: Balancing Individual Liberties with a Drug-Free Workplace, 44 U.C. Davis L. Rev. 1611 (2011).
- Charles A. Brown, Employment Discrimination Plaintiffs in the District of Maryland, 96 Cornell L. Rev. 1247 (2011).
Tuesday, August 9, 2011
Our own Paul Secunda was interviewed today on NPR's Marketplace. In Can Verizon hear them now? | Marketplace From American Public Media, the topic was the Verizon strike, now on day 3. The story also lays out the high profits Verizon has been making, and the split between the landline and wireless business. Paul points out that the union is fighting for the middle class and against rising inequality. Listen to the whole thing or read the transcript for more.
Great points and congratutions.
Monday, August 8, 2011
The House Oversight Committee issued a subpoena against the NLRB today in the Boeing case. The committee describes why it doesn't like this complaint, but really gives no justification for issuing a subpoena now, rather than waiting for the case to play out, other that the fact that the NLRB could take a while to issue a decision and "create even more crippling uncertainty for job creators." The subpoena is broad, to put it mildly--it seeks all documents related to the case, as well as the union involved. According to the committee's press release:
The NLRB subpoena requests documents dating from January 1, 2009 covering the following:
1) Documents in the custody or control of the Office of the General Counsel or the National Labor Relations Board referring or relating to the Boeing Company.
2) Communications to or from any person in the Office of the General Counsel or the National Labor Relations Board referring or relating to The Boeing Company, including but not limited to all emails and call logs.
3) Documents in the custody or control of the Office of the General Counsel or the National Labor Relations Board referring or relating to the International Association of Machinists.
3) Communications to or from any person in the Office of the General Counsel or the National Labor Relations Board referring or relating to the International Association of Machinists, including but not limited to all emails and call logs.
The material about the union is particularly over the top, as the vast majority of such information will have nothing to do with Boeing. If the NLRB wanted to be cute, it could provide the mountain of irrelevant documents it no doubt has referring to the union and let the committee sort though it.
In response, Acting GC Solomon issued a press release. Solomon states, among other things that:
- The Agency has turned over numerous documents - more than 1000 pages in all - detailing the legal theories of the case, motions made by all parties, court transcripts, and rulings.
- The Agency stated definitively that there has been no communication with the White House regarding the Boeing case. Similarly, there has been no communication to date between the Office of General Counsel and the Board on the merits of the Boeing case. The Agency response to requests in both categories is that there are no documents to provide.
- Many of the remaining documents sought by the Committee will be made available as the trial proceeds and evidence is entered into the court record. These include statements of witnesses who will testify, and statements by Boeing and the Machinists Union whose premature disclosure could interfere with the fairness of the trial and any possible settlement negotiations. In addition, we believe that the premature disclosure of any documents from the investigative file of an open case would establish precedent that could endanger future cases.
Note that the committee hasn't provided documents "referring or relating to," or "communications to or from any person . . . referring to or relating to," Boeing. This attempt to influence the Board's decision against the company at least raises questions about how much Boeing is involved with the committee's actions. To the extent it is, it raises troubling questions about the company's actions, as well as those of the committee.
Whether or not you agree with the filing of the complaint in this case, the interference with an ongoing prosecution should be troubling to anyone interested in the NLRB's--not to mention any other agency's--independence. What will be interesting now is what happens next. Although he wasn't explicit, Solomon seems to hint that he will refuse to fully comply with the subpoena; indeed, he really doesn't have a choice, as it would be wholly inappropriate to provide some of that material. Unfortunately for him, this might lead to a contempt of Congress charge and even threats of detainment. Hopefully it won't get to that point, or even farther, but you never know given the current environment.
Sunday, August 7, 2011
Steven Greenhouse has a piece in the N.Y. Times on the connection between declining union density in the U.S. and increasing income inequality. The piece describes a new study that asserts that declining union power and density, from 1973 to 2007, is responsible for a third on the rise in wage inequality among males (and a fifth for women). The authors cite lack of union pressure as helping to keep wages down in both the union and nonunion sectors and less political interest in addressing wage inequality issues. What's less clear (at least to someone who hasn't read the studyion only, which is subscript) is how much one can tease out the effects that union density has on wage equality versus other factors, such as technological advances and globalism, which affect both union density and wages.
Hat Tip: Michael Duff