Friday, September 30, 2011
Ann McGinley (UNLV) has just posted on SSRN her article (forthcoming Nevada L.J.) Ricci v. Destefano: Diluting Disparate Impact and Redefining Disparate Treatment. Here's the abstract:
Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.
Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than disparate impact. Simultaneously, it appears to broaden the disparate treatment theory, but this new interpretation of disparate treatment is selective: it expands the definition of discriminatory intent to include any overt consideration of a protected characteristic. By its literal interpretation of intent - intent means any conscious, explicit consideration of race in making employment decisions - it appears to disregard unconscious discrimination or implicit bias as supporting a possible cause of action under disparate treatment law. These changes make Ricci one of the worst recent cases decided by the Supreme Court. Ricci sanctions finding discrimination against white men who have been privileged by history and structure of the fire department while simultaneously ignoring the history and practices that led to the low numbers of minority men in supervisory positions in the fire department. It also appears to credit obvious and explicit discrimination over the less obvious but implicit biases caused by structures and attitudes that hinder the progress of women and minority men in the workplace.
Stephen Blakely (EBRI) has just posted on SSRN his article Is There a Future for Retirement?. Here's the abstract:
This paper summarizes the presentations and discussions at the Employee Benefit Research Institute’s May 12, 2011, policy forum, on the topic: “Is There a Future for Retirement?” This was EBRI’s 68th policy forum held in Washington, DC, and was attended by about 120 policy and professional experts. The EBRI Retirement Readiness Rating™ finds that many individuals will need to keep working past normal retirement age in order to have sufficient resources to pay the bills; said another way, they have insufficient resources, even including Social Security and Medicare, to pay their bills. Many articles and papers have been written in recent years suggesting that working an extra two or three years would solve the problem for most people, but this has not been well documented or quantified. But will it be enough if workers simply stay on the job just a few extra years? New EBRI research presented at this May 2011 policy forum addressed that question with comprehensive data from its Retirement Security Projection Model.® These findings, presented by EBRI’s research director and published in the June 2011 EBRI Issue Brief, show that if Baby Boomers and Gen Xers delay their retirement past the age of 65, many of them still would not have adequate income to cover their basic retirement expenses and uninsured health care costs -- especially low-income workers. Even if workers delay their retirement age into their 70s, there is still a chance the household will be “at risk” of running short of money in retirement. A speaker from Callan Associates presented research showing the impact of automatic features in 401(k) plans on retirement income adequacy, as well as data on the impact of “leakage” of savings in 401(k) plans (such as through cash-outs at job change, hardship withdrawals, and loans). Other speakers suggested that retirement plan sponsors should provide workers with more help in investing, since many workers will not be able to save more money or retire later, and that workers could improve their financial security by better asset management -- in particular by cutting debt and using guaranteed income products such as life annuities to manage longevity risk. A variety of speakers touched on how a substantial number of Americans will not be able to work longer than traditional retirement age even if they want to because of layoffs, mergers, or poor health.
Thursday, September 29, 2011
"Don't think of it as losing your job. Think of it as a time-out between stupid bosses."
"Is there anywhere I could hack up a hairball, like say, on a former employer's head?"
"Losing your job does not define you. What you do about it does."
LaborRelated has the scoop on an an NLRB ALJ decision, Knauz BMW, released yesterday. This is the case in which a car salesperson used facebook to disparage the food (hot dogs) served at his employer's promotional event. The ALJ determined that the employee had engaged in protected concerted activity on facebook, but was fired for other, unprotected facebook activity.
Wednesday, September 28, 2011
On September 13, 2011, the Department of Labor Administrative Review Board (ARB) issued an opinion in Menendez v. Halliburton, Inc., another opinion in a long line of opinions this year and last year that affirm broad protections for Sarbanes-Oxley Act (SOX) whistleblowers. The ARB reversed the decision of the Administrative Law Judge, finding that the reporting of questionable accounting practices in this case was a protected activity even when the whistleblower was mistaken. The ARB also ruled that the disclosure of the whistleblower’s identity – even though coworkers would eventually find out anyway – was an adverse employment action. In addition, the whistleblower need only show that the protected activity was a contributing factor in the employer’s decision to take the adverse action – a very low hurdle.
Importantly, the ARB further expanded protections for whistleblowers by removing from consideration Title VII case law that may have produced narrow exceptions to whistleblower protection. The ARB formally adopted the Williams standard, which states that any nontrivial unfavorable employment action is an adverse action, but curiously the ARB also retained the Title VII Burlington Northern standard as a persuasive interpretive tool.
- Andreas N. Akaras & Sebastian G. Amar, A View From the Front Lines: Why Protecting Immigrant Workers is Essential for Immigration Reform and Vital to the Maintenance of a Healthy American Workforce.
- Fedline Ferjuste, The Agricultural Worker Protection Act & Florida's Migrant Worker: The Hands That Feed Florida
- Peter Asaad, E-Verify: Chamber of Commerce v. Whiting
- Elizabeth Keyes, Immigrant Workers' Rights: Beyond the Scope of Traditional Labor & Employment Law
- Alexander M. Bard, Strength in Numbers: The Question of Decertification of Sports Unions in 2011 and the Benefit of Administrative Oversight
PDF versions of all of the articles are available on the Forum's website at: www.aulaborlawforum.org
Laura Cooper (Minnesota) sent me word of this, and I'll admit that it took me awhile to figure out what was going on. Here goes:
The LMRDA imposes reporting requirements (including the disclosure of fees and expenses) whenever an employer hires a consultant to "persuade" employees regarding their organizing and collective-bargaining rights (i.e., whenever an employer hires a "union-busting" firm). LMRDA Section 203 creates an exemption for "advice" or representation before a court, agency or arbitral tribunal, or in collective bargaining.
Over the years, and especially following a 2001 Department of Labor interpretation of Section 203, the exception came to swallow the rule -- it would exempt an employer from the reporting requirement any time the employer was "free to accept or reject" materials provided by the consultant -- which of course was almost always.
In June 2011, the DOL proposed a new interpretation of Section 203 that would substantially narrow the exemption. The proposed interpretation provides:
With respect to persuader agreements or arrangements, "advice" means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, "persuader activity" refers to a consultant's providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
The proposal also provide examples of reportable and non-reportable agreements or arrangements:
Reportable agreements include those in which a consultant agrees to plan or orchestrate a campaign or program on behalf of an employer to avoid or counter a union organizing or collective bargaining effort..., or otherwise engages on behalf of the employer, in whole or part, in any other actions, conduct, or communications designed to persuade employees.... No report is required concerning an agreement or arrangement to exclusively provide advice to an employer, such as when a consultant exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law, or provides guidance on NLRB practice or precedent.
Unsurprisingly, the AFL-CIO supports the new interpretation. The American Bar Association, however, opposes the new interpretation, at least to the extent that the new interpretation will apply to lawyers. The ABA's argument is that the restriction on the exemption unduly interferes with the relationship between the management-side lawyers and their corporate clients.
Now, as Laura points out, there's a fight brewing between the AFL-CIO lawyers and the ABA over the proposed new interpretation.
Monday, September 26, 2011
University of Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?
I am excited to announce that the University of Wisconsin Law School (where I am visiting this semester) is presenting a labor law conference that I am co-organizing with Professor Carin Clauss. The conference will be held on October 27th and 28th in Madison and is entitled: The Constitutionalization of Labor and Employment Law?
The five panels of the conference are divided into separate areas of constitutional law, including: (1) Freedom of Speech; (2) Freedom of Association; (3) Equal Protection; (4) The 13th Amendment; and (5) Workplace Privacy under the Fourth Amendment.
Panelists include: Cheryl Harris (UCLA); Sophia Lee (Penn); Marcia McCormick (St. Louis); Susan Carle (American); Maria Ontiveros (San Francisco); Jim Pope (Rutgers-Newark); George Rutherglen (Virginia); Julie Chi-hye Suk (Cardozo); Lea Vandervelde (Iowa); Leonard Bierman (Texas A&M); Rafael Gely (Missouri); Susan Freiwald (San Francisco); Pauline Kim (Wash U); Marty Malin (Chicago-Kent); Roy Adams (McMaster (Canada)); Ken Dau-Schmidt (Indiana); Sam Estreicher (NYU); Mark Tushnet (Harvard); Scott Bauries (Kentucky); Mike Harper (BU); Dan Kahan (Yale); Kim Roosevelt (Penn); and Randy Kozel (Notre Dame).
It is a great collection of speakers and I hope many of you can come. There is special registration for full-time members of academia. For more information about registration and other information, please check out the conference web page.
- Some pretty bad conditions in an Amazon warehouse, mainly related to excessive heat. OSHA also managed to have some impact, albeit with limits. One lingering question: will the heavy use of temp employees there be able to ward off a union drive? Because the place sounds ripe for one.
- Steven Greenhouse on the ways that Citizens United may increase unions' political clout. It will be interesting to see how this plays out, particularly whether some of the more far-reaching changes that are possible (e.g., see this piece by Charlotte Garden (Seattle)) will come to pass.
- Labor organizations are getting active in post-revolution Egypt. Increased strike activity, and the government's uncertainty of how hard to push back, is the primary issue.
- Former NLRB Member Peter Schaumber now an advisor to Mitt Romney's presidential campaign. Also on board is Boeing's lead counsel for the case brought by the NLRB's GC.
- The AEA obtains an injunction against a new Arizona law that restricted payroll deductions for certain unions, but did not restrict deductions for public safety and other unions. The judge agreed with the AEA that the different treatment of unions caused First Amendment problems.
Hat Tips: Michael Duff & Patrick Kavanagh
- Karen Halverson Cross, Letting the Arbitrator Decide Unconscionability Challenges, 26 Ohio St. J. Disp. Resol. 1 (2011).
- Douglas E. Ray, The Dean's Role in Building a Positive Workplace Environemnt, 42 U. Toledo L. Rev. 657 (2011).
Sunday, September 25, 2011
EGT built a new grain terminal in Longview, WA. It negotiated with the ILWU to supply labor for the terminal, but then instead contracted with General Construction Co. to staff the terminal using workers from a different union. ILWU folks are not one bit happy and have, among other things, held security guards hostage, dumped grain, and damaged railroad cars (see these AP and J. Commerce articles). The NLRB (Region 19) has obtained an injunction, a TRO, and a contempt order against the ILWU. Region 19 is the Region that also is handling the Boeing litigation. Nicholas Ohanesian points out that it's more than a little ironic that the same folks criticizing Region 19 as "biased toward labor" seem to have overlooked Region 19's actions against the ILWU.
Even as many public-sector state pension systems report record underfunding, legislators in most states have passed generous pension rules conferring extra-special benefits on themselves. Examples include rules that artificially inflate salaries, permit double-dipping, allow very-early retirement, and the like. Edward Zelinsky (Cardozo) is interviewed on the subject in this USA Today article.