August 20, 2011
Another Addition To The Chutzpah File
Gov. Kasich in Ohio help spearhead the effort to enact a law restricting union rights more than the higher-publicized Wisconsin law. Throughout that effort, Kasich and other supporters made little, if any, real effort to negotiate or compromise with union supporters, as the Republicans clearly had the votes to pass the measure. In what can only be described as chutzpah, Kasich is now calling for union leaders to meet and talk with him about reforming the new law.
The reason for this sudden interest in discussion? A repeal effort that one poll estimates is favored by 24 points. Kasich is now asking for changes in the law in exchange for an abandonment of the repeal effort. You can guess the unions' response: repeal the law first, then we'll talk.
The poll does show support for some parts of the law (mainly those involving more benefit contributions by workers), but if the referendum ends up spiking the entire measure on Nov. 8, expect more fireworks when the legislature decides what to do next. Between the Wisconsin legislator repeal efforts (with one for Gov. Walker possible later) and the referendum in Ohio, labor law looks to stay on the political agenda for quite a while.
Hat Tip: Bill Herbert
Verizon Strike Over (For Now)
Word is out that the two unions striking Verizon have agree to call off the walkout. What's interesting is that a substantive deal hasn't been reached, nor have the unions have not capitulated to Verizon's last offer. Instead, there appears to deal to engage in bargaining in exchange for returning to work. The major economic issues, health care and job security among them, are still on the the table. But Verizon has apparently done enough to convince the unions that it will engage in meaningful bargaining. This is a good reminder that the substance of the issues aren't the only factor in negotiations. Personalities, bargaining strategies, and a host of other factors can play a major role.
I'm curious whether the new bargaining will be fruitful. The unions clearly hope so, but you have to wonder whether it's in part wishful thinking. On the other hand, if a company is seeking deep concessions by workers, perhaps not taking such an aggressive stance is the smarter strategy. So it's possible that Verizon is changing it's bargaining approach enough to make the significant cuts that look necessary to reach a deal doable. We'll just have to wait and see.
August 19, 2011
The New York Times has been following a story about a strike by employees at a Hershey's packing plant. The background to the dispute highlights the increasingly complex nature of work. First, there are multiple layers of management involved; the plant is run by another company that Hershey contracts with and that company hires yet another company to staff the plant (this brings to mind Tim Glynn's recent argument to make companies in a employment chain liable for employment law violations further down the chain). Second, the workers are in the U.S. on J-1 visas. These visas are essentially a way for foreign students to spend a summer abroad in the U.S. while working and traveling around the country. Many of the student workers also blame for their situation the organization that manages the visa program for the state department.
The dispute itself should sound very familiar. The students workers allege that the plant was staffed almost entirely bby foreigners, who were told to work long hours lifting heavy boxes (just because there were Reese's Pieces inside doesn't make it any lighter) for low wages ($7.25 - $8.35 an hour). Moreover, there are allegations that bring to mind old company towns, as the students claim that they were charged inflated rent and various fees, often resulting in only $200 a week in take home pay--this after spending thousands of dollars to get their visas. Their response? A walk out and protest.
After this story and the labor troubles at IKEA, my wife might start checking out this blog even less than she does now . . . .
Hat Tip: Michael Duff & Alan Hyde
Summary Judgment for Bloomberg in Pattern and Practice Case
Judge Preska in the Southern District of New York granted Bloomberg, LP summary judgment in EEOC v. Bloomberg, a pattern and practice sex/pregnancy discrimination case earlier this week. The EEOC had alleged that Bloomberg had a practice of discriminating against employees who took maternity leave by reducing their responsibilities and compensation, and by engaging in other actions that ostracized them or made it harder for them to succeed. Essentially, the court found that the EEOC had not presented enough evidence that discrimination against employees who went on maternity leave were systematically discriminated against.
The key to the district court's decision was the fact that the EEOC presented no statistical evidence. Instead, it relied on the "anecdotal" evidence of of disparate treatment for seventy-seven women. There were 603 women who took maternity leave during the six-year time period at issue in the action. There were other problems as well. Some of the deposition evidence from the women claimants suggested that their own choices may have factored into some of their treatment. Relatedly, some of the negative treatment came as a result of accommodating women who were pregnant, on maternity leave, or had recently returned from maternity leave--although it isn't totally clear that the women always requested those accommodations. Finally, this case suffered from the same problem that was decisive in Wal-Mart v. Dukes--the discrimination was carried out through a policy of allowing managers discretion to make decisions. The court noted that it would be hard to ever show a practice with so much individual decisionmaking.
It's another blow to the pattern and practice cause of action.
August 18, 2011
NLRB Social Media Cases
The NLRB's Acting Attorney General, Lafe Solomon, just released a report on the GC's investigtion of cases involving social media. The report provides a nice summary of the types of cases that the Board is seeng in the area, which is obviously one that gets a lot of attention in the media, even though it's not that novel with regard to the law. The NLRB's press release gives a summary of the outcomes of the investigations:
In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.
In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page.
In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.
UPDATE: Bill Herbert passed along the Chamber of Commerce's own report on these cases, which came out before the GC report; between the two of them, you've got a great coverage of the basics of the labor social media issues.
Call for Proposals for Eighth Annual Colloquium in Fall 2013 on Current Scholarship in Labor and Employment Law
The Steering Committee for the Colloquium on Current Scholarship in Labor and Employment Law is now taking proposals to host the 8th Annual Colloquium to be held in Fall 2013. Please note that the Sixth Annual Colloquium will be next month in Los Angeles, and the 7th Annual Colloquium in Fall 2012 will be in Chicago.
Previous Colloquiums have taken place in Milwaukee, Denver/Boulder, San Diego, Newark, NJ, and St. Louis. The Colloquium offers a chance for labor and employment law scholars to workshop their papers in front of a supportive group of their colleagues from around the country (and sometimes from around the world).
If you are interested in pitching your school for the Eighth Annual Colloquium, please email a written proposal to me (firstname.lastname@example.org) no later than September 30th. The proposal should include information about the facilities to be used, the days proposed, how panels will be set up, food to be offered, accessibility to airport, and other costs to be borne.
If people are interested in seeing proposals from previous years, the Committee will be happy to supply you with some past examples. Please note that past Colloquium have not charged a registration fee and participants are only responsible for their travel and lodging costs. Host schools have generously provided meals in the past during the Colloquium.
Please also feel free to email me with any additional questions you might have.
August 17, 2011
The Scope of Jefferson Standard
A few weeks ago, the NLRB issued a decision in MasTec Advanced Technologies. At issue was an employer's termination of employees because of negative statements made on a news station about the employer (which installed Direct TV) by the employee technicians. The technicians were angry about a new compensation formula implemented under pressure by Direct TV. Among their responses was a group TV news interview with the technicians, in uniform, saying things like they were told to lie to customers and that if they didn't convince customers to buy services that didn't need, money would be taken out of their paychecks. At Direct TV's urging, all the technicians in the broadcast were fired.
The majority applied Jefferson Standard and concluded that the technicians' statements remained protected activity because they were not maliciously untrue and were not so disloyal or reckless as to lose protection. The terminations, therefore, violated Section 8(a)(1). Of more interest is Member Becker's concurrence. He would limit Jefferson Standard to instances where the statements at issue was not expressly and directly related to a labor dispute. In cases, like MasTec, where the statements are expressly and directly related, he would use the standard from Linn v. Plant Guards: statements are protected unless made with actual malice. Chairwoman Liebman wrote a short concurrence in response, stating that Becker may have the correct view of Jefferson Standard, but because the parties did not ask the Board to consider that issue--and because the outcome didn't turn on it--it was a question better left for another day.
Given these decisions, we could likely see a more thorough discussion of Jefferson Standard's scope in the future.
Hat Tip: Dennis Walsh
August 16, 2011
Tennessee Works Council?
Sounds weird doesn't it? But something similar may be in the works at VW's new plant in Chattanooga. According to a Wall Street Journal article last month, the UAW is seeking to represent workers at the plant or, in the alternative, set up some form of employee voice based on German works councils. Helping the union's goal is the fact that VW has promised to be neutral in the press and has signed onto a global VW charter that gives employees the right to form works councils; Chattanooga is the only VW plant without one.
Of course, a true works council--which is technically separate from union representation--is impossible in the U.S. without a valid selection of a labor organization by a majority of employees. This is what the UAW would prefer. But what's interesting is what may happen if the union falls short. According to the article, the plant already has employee representation on committees that look at safety, bonuses, and peer reviews. However, those committees, as well as a future "works council," have to be careful not to run afoul of Section 8(a)(2). It's unclear whether the current committees are in trouble under Section 8(a)(2), or how a future works council would avoid a violation, although there's probably not a mad rush to file a charge even if there was a problem (although it only takes one upset employee and a lawyer willing to represent him or her, neither of which are that hard to find). Tennessee is by no means a pro-union state, but it has welcomed experimental employer/employee models before (remember Saturn?), so stay tuned.
Hat Tip: Barry Hirsch
Recently Published Scholarship: Marquette Symposium on the New American Economy
The Marquette Law Review's symposium on the New American Economy is out, and pdf versions of the articles can be downloaded from here.
The articles all look great:
- Paul M. Secunda, Promoting Employee Voice in the New American Economy
- Kenneth G. Dau-Schmidt, Promoting Employee Voice in the American Economy: A Call for Comprehensive Reform
- Laura J. Cooper, Letting the Puppets Speak: Employee Voice in the Legislative History of the Wagner Act
- Aditi Bagchi, Who Should Talk? What Counts as Employee Voice and Who Stands to Gain
- Ann C. Hodges, Avoiding Legal Seduction: Reinvigorating the Labor Movement to Balance Corporate Power
- Joseph E. Slater, Lessons from the Public Sector: Suggestions and a Caution
- Richard Michael Fischl, Labor Law, the Left, and the Lure of the Market
- Scott A. Moss,Yes, Labor Markets are Flawed--But so is the Economic Case for Mandating Employee Voice in Corporate Governance
- Briana R. Barron, Silent Warning: The FDA's Ban on Off-Label Speech: Is it Protecting our Safety?
- Thomas J. Burmeister, Jr., Burnin' Down the House--And Deducting it Too: Charitable Contributions of Buildings to Fire Departments Under I.R.C. § 170
August 15, 2011
Union Unhappiness with the Democratic National Convention
It's no secret that union have been less than thrilled with their perceived lack of support from Democrats and the White House (and talk seems to be that this unhappiness is reaching a significant level). One manifestation involves the choice of Charlotte for the Democratic National Convention. Charlotte, like most of North Carolina lacks a strong union presence (indeed, NC has the lowest union density in the country). It's not a surprise, therefore, that several unions are vowing not to participate in the convention.
The number of such unions is over a dozen and include the Machinists and many of the AFL-CIO's building and construction unions (the Teamsters are still deciding what to do). However, other big unions, such as the NEA and SEIU are still participating. Moreover, the state's unions were instrumental in getting the convention, revealing the complexity of this issue. The more important question is the extent to which unions sit out the election.
Hat Tip: Michael Duff
For those of you who have been following the twists and turns of the Ricci case (broadly viewed) after the Supreme Court's opinion, there's yet another dramatic development. Although the Ricci plaintiffs had their victory, a black firefighter, Michael Briscoe, challenged the use of the promotion test as having an unjustified impact on African Americans. Given that he was not a party to the Ricci litigation, it would seem that the district court would have had to consider his claim free of any preclusion effects.
But not so fast. Justice Kennedy, having envisioned this very possibility in Ricci, wrote a convoluted sentence whose purpose was to make clear that black firefighters couldn't prevail should they sue.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
And the district court seemed to think that, regardless of the normal rules of preclusion, a nonparty such as Briscoe could be bound when the Supreme Court explicitly addresses his situation: if plaintiff were denied his day in court, that was because Justice Kennedy had said so. Accordingly, it dismissed the suit.
The latest twist in this tale is from the Second Circuit, which reversed the district court in Briscoe v. City of New Haven. The city did not defend the lower court judgment by arguing preclusion -- and the panel agreed that "the district court's theory is inconsistent with well-settled principles of non-party preclusion." While the 1991 Civil Rights Act had widened the possibilities of preclusion in civil rights cases, the Second Circuit found that Briscoe did not fit into either of the categories for which Congress envisioned a nonparty being barred. "We are skeptical that the Court would use one sentence in Ricci to silently revise preclusion principles that were unanimously reaffirmed just over a year before in Taylor [v. Sturgell]."
The city put its eggs in a different basket and argued that, per Justice Kennedy's opinion and regardless of preclusion, the Supreme Court's decision provided the requisite strong basis in evidence of disparate treatment liability, which would exonerate the city from a disparate impact claim. The Second Circuit disagreed because "we see no way to reconcile the dicta.. . with either the Court's actual holding in Ricci or longstanding, fundamental principles of Title VII law."
The opinion is well-worth reading since, whatever you think of the basic holding in Ricci, Kennedy's language had the potential to do even more damage to the disparate impact theory, Indeed, his sentence is a kind of infinite regress -- there's disparate treatment if there isn't (a strong basis) for disparate impact and there isn't a strong basis for disparate impact because of the disparate treatment....
As the previous passage suggests, every time I read Justice Kennedy's sentence, I got confused. But the Second Circuit has done a lot to dispel the confusion, and confine Ricci to its holding rather than its dicta. The opinion is well worth a read, and I congratulate David Rosen on both his filing suit on behalf of Michael Briscoe and his persevering in the face of the district court's dismissal.
August 14, 2011
4th Circuit Restricts Scope of FLSA Retaliation Protection
Jon Harkavy (Harkavy Patterson) sends us the Fourth Circuit decision (handed down yesterday) of Dellinger v. Science Applications Int'l Corp. The court held, 2 to 1, that the FLSA does not reach retaliation against prospective employees. Given the Supreme Court's expansive reading of antiretaliation clauses, this case may be ripe for a cert grant.
Recently Published Scholarship
- Theresa M. Beiner, Some Thoughts on the State of Women Lawyers and Why Title VII Has Not Worked for Them, 44 Indiana L. Rev. 685 (2011).
- Mark C. Weber, Disability Rights, Welfare Law, 32 Cardozo L. Rev. 2483 (2011).
- Michael K. Zitelli, The Controversy Ensues: How Major League Baseball's Use of DNA Testing Is a Matter for Concern Under the Genetic Information Non-Discrimination Act, 18 Sports Lawyers J. 21 (2011).
- Kevin W. Wells, Labor Relations in the National Football League: A Historical and Legal Perspective, 18 Sports Lawyers J. 93 (2011).