Saturday, February 12, 2011
Sandra Sperino (Temple) has just posted on SSRN her article, "Rethinking Discrimination Law." In the article, she argues for a simpler analysis of discrimination cases that aren't as limited by preconceived frameworks. The abstract:
In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment and harassment. They then created elaborate, multi-part rubrics tied to each category. Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives juries hear and also structure the ways that judges and litigants think about discrimination.
Legal scholarship is replete with excellent articles challenging specific frameworks courts use to evaluate discrimination claims. This Article does not challenge any particular framework. Instead it challenges whether courts should even use frameworks to conceptualize discrimination in the first place. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims.
The Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit the courts’ methodology so that the structure and its effects can be examined. Second, it demonstrates how the frameworks tend to squeeze out claims that are arguably cognizable under the federal discrimination statutes’ broad operative language. The Article’s final contribution is to propose a simpler model for thinking about employment discrimination law. It argues for a return to first principles that requires the courts to specifically define key statutory language.
I'm a big fan of arguments for simplifying discrimination law, so this looks to me to be a great addition to the scholarship in the area.
Gov. Walker of Wisconsin has recently come out with proposed changes that would substantially limit public-sector unions' ability to represent government workers and limit those workers' ability to object generally to work conditions. Our own Paul Secunda (Marquette) has been all over the issue, with multiple media appearances (see here, here, here, here, and here). Among the Governor's proposals--which he argues is needed to repair the state budget--is to limit labor negotiations to only salaries, thereby eliminating bargaining over benefits and work conditions, and salaries would be capped to the CPI unless raised by referendum (law enforcement and firefighters are exempted from all of these changes); eliminate dues check-off; make Wisconsin a right-to-work state; require secret ballots for union representation; require newly negotiated contracts every year; and require workers to pay a much higher amount for their pension and health insurance He also notified unions that he was cancelling expired collective-bargaining agreements after 30 days. Among Paul's reactions:
- A law professor said the move would be "hugely unpopular." Unlike private unions, which are governed by federal labor laws, public employee unions derive their authority from state law, which the Legislature can change at any time. "He can do that, technically speaking," Paul Secunda, an associate professor of law at Marquette University Law School, said of Walker's plan to strip the unions of most of their collective bargaining power. "Is it a popular move? No. Is it in step with labor rights around the world? No."
- Paul Secunda, an associate professor at Marquette University Law School, said unions representing public workers could file lawsuits arguing their benefits were earned through past work, known as "vested benefits," and accuse the Walker administration of reneging on contractual agreements. "That legal challenge is going on in some other states where they've tried to cut back," he said. Secunda said unions may also argue there is a "constitutional right to collectively bargain," and that the government is interfering with those rights.
- "Not only is this inconsistent with international human rights law, which recognizes a right to collectively bargain with one's employer, but it also flies in the face of decades of cooperation between the labor movement and the government in Wisconsin," Marquette University law professor Paul Secunda said.
Moreover, as Michael Duff (Wyoming) notes, Gov. Walker stated that he's prepared to bring in the National Guard should public workers strike or protest raises a disturbing and possibly threatening image.
Friday, February 11, 2011
The House Subcommittee on Health, Employment, Labor, and Pensions held a hearing today on “Emerging Trends at the National Labor Relations Board." Apparently the trend that the Republic Chairman from Tennessee had in mind involved an “abandon[ment of the NLRB traditional sense of fairness and neutrality” in favor of a “far-more activist approach.”
Glad to see he did not prejudge the issue before hearing from ANY witnesses.
Cynthia L. Estlund (NYU) told the panel that “there is nothing unusual or illegitimate about the Board's reconsidering some of its own precedents,” and said “the current Board and Acting General Counsel are doing no more and no less than conscientiously carrying out their responsibilities” under the National Labor Relations Act.
Good for you, Cindy.
And the NLRB was not asked to participate in the hearing. What could they have to say of relevance?
Witch hunt, anyone?
Thursday, February 10, 2011
The ruling, long sought by advocates, means that women will be able to use money set aside in pretax spending accounts to buy the pumps and related equipment, which can cost several hundred dollars. For women without flexible spending accounts, the cost of pumps will be tax deductible if their total medical costs exceed 7.5 percent of adjusted gross income.
This may not seem at first glance totally workplace related, but given the fact that breast pumps are what often allow nursing moms to work and continue to nurse their children, and the amendments to the Fair Labor Standards Act that require employers to provide reasonable break time and space for nursing moms to express milk (plus the looming comment deadline for the DOL's guidance), I thought readers might be interested in this development.
Last week you may have seen the 2010 productivity numbers from the Bureau of Labor Statistics. Overall nonfarm business productivity was up 3.6 percent for 2010, almost identical to 2009's 3.5 percent growth. Wages, however, were fairly stagnant -- real hourly compensation was up only 0.3 percent. These most recent numbers are just the latest instantiation of the growing gap between productivity and employee compensation -- a trend that began in the 1970s. For a nice series of graphical illustrations of this divergence, check out BLS's The compensation-productivity gap: a visual essay. A similar trend can be seen in this rising share of GDP attributable to corporate dividends. Karl Smith at Modeled Behavior breaks this down: since the late 1980s, dividends as a share of GDP have more than doubled.
These trends illustrate, in my view, another societal development: the corporation has become the perfect legal machine for separating workers from the firm. In Employees and the Boundaries of the Corporation, I argue that our legal construction of the corporation has diverged quite significantly from our theoretical conception of the firm. It's actually quite striking: whenever we think of a firm--whether it be Coase, respondeat superior, or the work-for-hire doctrine--we think of employees. But employees are nowhere to be found in corporate law. The result has been a "firm" that consists mainly of employees and a "corporation" that consists of shareholders, directors, and officers. Labor and employment law seeks to redress the vulnerability of employees left outside corporate boundaries, but these can only go so far.
"Employees and the Boundaries of the Corporation" is a contribution to Elgar's forthcoming Research Handbook on the Economics of Corporate Law (Claire Hill & Brett McDonnell, eds.). (David Walker is also contributing The Law and Economics of Executive Compensation: Theory and Evidence). I would love to hear your thoughts.
Facebook sources tell me that Anne Lofaso just received official word that she's been tenured at West Virginia. However, the West Virginia Law website is down, and I haven't yet received confirmation -- help, anyone?
Chris Cameron (Southwestern) points out that the upcoming May ALI annual meeting, at which the Restatement of Employment is to be discussed, will be held at the Westin St. Francis, another boycotted hotel in San Francisco.
Wednesday, February 9, 2011
The NLRB has just announced a new design and format for its website, which has the same address. The NLRB's site has long been one of the better ones among federal agencies, and the new version--which looks great and seems even more user friendly--only improves things. Among the new features, according the Board's announcement (of course, conveniently listed on the site):
- More case information is available more quickly than ever before. All Board decisions are now posted to the site at the time they are issued, rather than after a three-day holding period. The Board is also for the first time posting unpublished decisions, which do not appear in the official bound volumes of Board decisions. Additional documents from Washington and the regional offices not previously available will be posted to the site over time.
- The website showcases a new case-management system that has been coming online at the agency for more than a year, and will be deployed to all regional offices by the end of this fiscal year. The new single system replaces 13 separate case tracking systems, and will allow for seamless searches that cover the entire life of a case at the agency. Each case is assigned its own page, where information and documents are posted. More information and documents will be added over time as the rollout of the new system is completed.
- For the first time, the agency’s 32 regional offices – where all cases and elections begin – are prominently highlighted in the new site. An interactive map shows regional boundaries and allows visitors to quickly locate their own regional office. One click away is a page for each region that lists top officials and features newsletters, news releases and local cases and decisions.
- A data section tracks NLRB activities over the years by the numbers. The section launches with eight charts and tables covering a variety of indicators, from charges filed to back pay collected. More charts and tables, with greater interactivity, will be added through the year.
- Improved navigation will make it far easier for visitors to find their way, and new pages explain the NLRB processes and functions in accessible language. At the same time, all the case-handling manuals, memos and forms found on the old website will be available on the new one.
I particularly like the new data page, which makes some popular figures much easier to access than having to look up annual reports (I had trouble getting the graphs, but I assume it's a kink that will get ironed out).
Hat Tip: Amy Cocuzza
Congratulations to our own Jeff Hirsch for being extensively quoted in a BNA article (subscription required) on the Senate Republican's unanimous opposition to the re-nomination of Craig Becker to the National Labor Relations Board (NLRB). Becker is currently serving under a recess appointment until the end of this year.
Here's what Jeff had to say:
Jeffrey Hirsch, associate professor of law at the University of Tennessee, questioned the senators' characterization of Becker as leading the NLRB into some of the decisions it has made in the past 10 months.
Hirsch observed that Becker dissented from a ruling in Humane Society of Seattle/Kings County, 356 N.L.R.B. No. 13, 189 LRRM 1440 (2010), in which Liebman and Pearce were in the majority on an election objection issue, while Becker was in the minority in Wheeling Island Gaming Inc., 355 N.L.R.B. No. 127, 189 LRRM 1422 (2010), in which Liebman and Schaumber outvoted him on a bargaining unit issue.
Noting that many of the cases addressed by the board during Becker's recess appointment were pending long before Becker was sworn in, Hirsch said Becker is only one voice on the board.
Commenting that Liebman and Pearce have their own views and that Liebman in particular is “no shrinking violet,” the law professor said it is difficult for those outside NLRB to assess the influence of any one member on the board as a whole.
Absoluely correct, Jeff. Keep those Senators honest and make them pay attention to the facts (even though those facts may be inconvient politically for them).
Ann McGinley (UNLV) brings to our attention the Multidimensional Masculinities and Law: A Colloquium -- the program is here.
It is sponsored by UNLV Boyd School of Law and co-sponsored by Suffolk University Law School. It celebrates a new and exciting edited collection, Masculinites and Law: A Multidimensional Approach, edited by Frank Rudy Cooper and Ann C. McGinley, which will be published by New York University Press in 2011. The Colloquium will also consider where the field of Masculinities and Law should go from here. The program takes place next Friday and Saturday, February 18 and 19.
Anyone interested in the colloquium should get in touch with Ann McGinley or Frank Rudy Cooper. The program will be recorded and available for research at UNLV Scholarly Commons. For information, please contact Jeanne Price at UNLV at firstname.lastname@example.org.
Monday, February 7, 2011
As we reported earlier, the NLRB's General Counsel had filed a complaint against a company for, among other things, firing an employee for criticizing her supervisor on Facebook and because the employer improperly promulgated a policy against employees depicting the employer “in any way” on social media sites or writing disparaging comments about co-workers or superiors. The Board has now settled with the employer, American Medical Response of Connecticut. According the NLRB press release:
Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.
The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.
So, alls well that ends well. Of course, a decision by the Board would have gotten some good attention for the agency, but I'm guessing this isn't the last Facebook case we see.
Hat Tip: Patrick Kavanagh
I am sorry to have to bring to you the news of the passing of Nell Hennessey, who for over 25 years taught as an adjunct law professor at Georgetown University Law Center. I had come to know Nell in the last few years and she was unceasingly generous with her time, whether it was representing the AALS Employee Benefits Committee or giving of her time to participate at an ERISA conference at Hofstra Law School.
From an obituary written by Solution Law Press's HR and Benefits Update:
Nell Hennessy died February 4, 2011 after a brave battle with cancer. Her passing was announced earlier today by Phyllis C. Borzi, Assistant Secretary of Labor Employee Benefits Security Administration.
Ms. Hennessy, Chief Executive Officer of Fiduciary Counselors Inc., was widely respected in the employee benefit community for both her professional leadership in the development of employee benefit law and her generous mentorship and friendship to employee benefits practitioners throughout her career . . . .
Since 1985 Ms. Hennessy has been an adjunct professor at Georgetown University Law Center, where she helped develop the graduate certificate program in employee benefits. She was a founding Board member of the American College of Employee Benefits Counsel and she a founding member and past President of the Worldwide Employee Benefits Network (WEB). Ms. Hennessy is also a member of the National Bankruptcy Conference, a non-partisan, organization of approximately 60 lawyers, law professors and bankruptcy judges who advise Congress on bankruptcy law . . . .
According to Ms. Borzi, arrangements for a memorial service for Ms. Hennessy are pending. Persons wishing to memorialize Ms. Hennessy are encouraged to contribute to the Nell Hennessy Employee Benefits Scholar Award at the Catholic University of America, Office of Development and Alumni Relations, 3600 John McCormack Rd., NE, suite 339, Washington, DC 20064.
Rest in peace, Nell. You will be greatly missed.
Comparative Labor Law & Policy Journal
Volume 32, Number 2 (Winter 2011)
- Adelle Blackett, Introduction: Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora, p. 303.
- Dzodzi Tsikata, Toward a Decent Work Regime for Informal Employment in Ghana: Some Preliminary Considerations, p. 311.
- Rose-Marie Belle Antoine, Rethinking Labor Law in the New Commonwealth Caribbean Economy: A Framework for Change, p. 343.
- Diamond Ashiagbor, Embedding Trade Liberalization in Social Policy: Lessons from the European Union?, p. 373.
- Chantal Thomas, Convergences and Divergences in International Legal Norms on Migrant Labor, p. 405.
- Adelle Blackett, Beyond Standard Setting: A Study of ILO Technical Cooperation on Regional Labor Law Reform in West and Central Africa, p. 443.
Posts describing the awful financial state of public pension plans are regular features of this blog. Edward Zelinsky (Cardozo) writes today at OUPblog about one reason why such plans are underfunded: the pension spikes that occur when a relatively low-paid government employee receives an end-of-career promotion into a high-paying position, as when a state legislator receives an executive-branch appointment shortly before retiring. The effect can be to increase significantly the penion to which that employee is entitled, with no corresponding increase in the way the plan is funded. Says Zelinsky:
[L]egislators’ pension spikes signal a business-as-usual approach to state pensions, the lackadaisical approach which has brought many states, like Connecticut, to the brink of financial collapse. How can a Governor impose fiscal discipline on state pensions when among his first acts in office are appointments which manipulate the pensions to provide windfalls to his appointees?
- Nicole Buonocore Porter, Why Care About Caregivers? Using Communitarian Theory to Justify Protection of "Real" Workers, 58 Kansas L. Rev. 355 (2010).
- Cynthia Estlund, Just the Facts: The Case for Workplace Transparency, 63 Stanford L. Rev. 351 (2011).
- Katie E. Johnson, A Practical Solution to the Courts' Broad Interpretation of the Lilly Ledbetter Fair Pay Act, 71 Ohio St. L.J. 1245 (2010).
- Nicole Kennedy Orozco, Pumping at Work: Protection from Lactation Discrimination in the Workplace, 71 Ohio St. L.J. 1281 (2010).
- Jamison F. Grella, From Corporate Express to FedEx Home Delivery: A New Hurdle for Employees Seeking te Protections of the National Labor Relations Act in the D.C. Circuit, 18 Am. U. J. Gender, Social Policy & L. 877 (no year provided).
- Angela J. Schnell, But I Love Him! Why the Sixth Circuit Erred in Thompson v. North American Stainless, LP by Denying a Third Party Relaliation Claim Under Title VII, 18 Am. U. J. Gender, Social Policy & L. 909 (no year provided).
Sunday, February 6, 2011
Here's the story from Politico:
In picking North Carolina as the site of their 2012 convention, Democrats didn’t just pick a state that’s relatively unfriendly to unions. They picked the least unionized state in the entire country.
It was a stinging rebuke to one of the Democratic Party’s most loyal and influential constituencies. And labor leaders are fuming at the slight.
The selection was “a calculated affront,” said Rick Sloan, communications director for the International Association of Machinists and Aerospace Workers.
What’s worse, Sloan noted, the convention is set to begin on Mon., Sept. 3, 2012 — Labor Day.
Hat tip: Dennis Nolan.