February 25, 2011
Dimick on Labor and Liberalism
Matthew Dimick (Georgetown) has just published in Salon his article, "Maybe It's a Relic, But the Union Model is Essential." In the article, Dimick responds to arguments that labor unions have no role in the future of American liberalism. He acknowledges that labor is currently on the ropes--particularly the "old labor" model of unions--but argues that a modernized labor movement can and should play a crucial role in liberals' attempts to achieve their policy goals. An excerpt:
Michael Lind, writing in Salon earlier this week, offered a vision of liberalism without labor. The labor movement has constituted only one strand of the American liberal tradition, he contends, and it has hardly been the most popular or most supportive of its policy vision. . . . According to Lind, "Liberals must ask themselves whether defending archaic 1950s-style employment and benefit arrangements that survive as fossil relics in the public sector fits into a plausible and potentially popular vision of a reformed American social contract in the 21st century." . . .
Lind clearly sees himself as an avatar of American social democracy. Employer-based benefits that labor unions delivered are a relic; universal, contributory social insurance programs are the future of liberalism. I agree. But Lind, unfortunately, gives us absolutely no reason to think this vision can be achieved without a labor movement. I will explain why I think the labor movement is essential, but my argument depends only partly on the fact that unions turn out votes for Democrats -- a fact that, as Lind correctly notes, has no appeal outside liberal circles. . . .
The labor movement faces daunting odds. Lind is right to criticize the narrowness of Old Labor; the labor movement must still make great internal changes if it wants to revive itself. Yet whatever the prospects of a liberalism with labor, a liberalism without labor in a nation of staggering levels of economic inequality is even more unlikely.
Check it out!
ABA National Symposium on Technology in Labor and Employment Law
Thanks to Bill Herbert for letting us know that the annual ABA National Symposium on Technology in Labor and Employment Law is going to be held at New York University School of Law on April 27-29, 2011.
The event is being organized by the Technology in the Practice and Workplace Committee and it is co-sponsored by the Center for Labor and Employment Law at New York University School of Law.
Best protest signs from Wisconsin
The media coverage and debate about the protests in Wisconsin over the Governor's plan to remove public sector collective bargaining rights has been extremely engaging. It's been frustrating to see it at times superficial and fascinating when at times it's been quite in depth. I have to admit that watching and reading it all has been both stressful and energizing--and public sector labor law isn't even really my field, although I am mostly a product of public schools, was a government worker for most of my time in practice, my parents have been public workers for much of their working lives (different government), and my grandparents too, were public workers (yet a third government), so I feel connected to the issue.
And so suitable for a Friday, when we all likely need some levity to relieve the stress, enjoy the 100 Best Protest Signs at the Wisconsin Capitol courtesy of Buzzfeed. My favorite, shown above, are the anguished snowpeople.
Hat tip: Dan Marks
Massive Public-Sector Strikes Anticipated in England
The Mail Online (via PJH Law) reports that the government in England anticipates a massive strike over public-sector cutbacks, primarily in the prison sector. Three thousand soldiers are being trained as prison guards as the guards prepare to strike over plans to privatize two prisons. From the Daily Mail:
Officials have conducted ‘war games’ to ensure that strike breakers are available to run vital facilities such as the Tube and energy hotspots such as power stations.
Transport managers and prison bosses have been ordered to organise agency workers and teams of managers to cross picket lines amid fears of a nationwide summer of industrial action.
Ministers believe militant union bosses are planning to bring Britain to a halt with coordinated strikes on roads, railways, and throughout the public services.
Better Work Conference Call-for-Papers
The last decades have witnessed a growing concern over labour rights and working conditions in developing country locations supplying for the global market. The Better Work research conference Workers, Firms, and Government: Understanding labour compliance in global supply chains aims at analysing the impact of labour standards compliance in global supply chains on firms and workers, looking at the ‘business case’ as well as at the ‘development case’ for labour standards.
Abstracts should be submitted to email@example.com together with a short CV of the author(s). The email should reference “Better Work research conference” in the subject line.
Here are the deadlines:
- Abstract submission: 31 March 2011
- Communicating acceptance: 10 June 2011
- Full paper submission: 31 August 2011
Hat tip: Marley Weiss.
February 24, 2011
Job Growth Focused on Low-Wage Work
The National Employment Law Project just released a report finding that recent job gains have been largely in low-wage work (defined as $9.03 -$12.91 per hour), in contrast to job losses in the recession being centered on mid- ($12.92 -$19.04 per hour) to -high ($19.05 -$31.40 per hour) paying jobs (you can see a fuller summary at the New York Times' Economix). According to NELP:
- Lower-wage industries constituted 23 percent of job loss, but fully 49 percent of recent growth
- Mid-wage industries constituted 36 percent of job loss, and 37 percent of recent growth
- Higher-wage industries constituted 40 percent of job loss, but only 14 percent of recent growth
This ratio, and the slow return of the job market, is also worse than we saw in the 2001 recovery. Not a surprise given the depth of this recession, of course.
Slater on NPR re Public-Sector Unions
Hat tip: Laura Cooper.
February 23, 2011
Poll: Majority Oppose Stripping Bargaining Rights for Public Workers
USA Today/Gallup released a poll today showing that a majority of the public opposes attempts, such as Gov. Walker's bill in Wisconsin, to reduce public workers' collective bargaining rights. The poll, which was conducted on Feb. 21, found that 33% of respondents supported such measure while 61% opposed (Democrats were 18% for/78% against; Republicans 54% for/41% against; Independents 31% for/62% against). Those numbers are pretty surprising given the rhetoric that supporters such as Gov. Walker have been using that suggest that the public is on their side. Obviously, this isn't broken down by state, but it's hard to believe that Wisconsin is less supportive of public collective-bargaining than the nation at large. Moreover, even the Republican numbers are surprising--I would've thought a far higher number supporting restrictions on bargaining (perhaps indicating that more polling is needed).
Another finding in the poll show that when asked whether public unions were helpful or harmful to a state, respondants were split, with 45% saying more helpful and 46% more harmful (Democrats were 65% helpful/27% harmful; Republicans 26% helpful/67% harmful; Independents 42% helpful/49% harmful)
If this poll accurately reflects the public view of this issue, then it might show that politicians pushing these measures--at least in states with similar or greater support for public unions--are placing themselves at risk. It also suggests that unions are right to put a lot of energy in opposing the measures.
Hat Tip: Alex Long
Technology & LEL Law
David Foley has a nice post up on LaborRelated about the ways that technological advancements are changing things in labor and employment law. Here's an excerpt:
As more and more employees have smart phones, tablets, and other ways to perpetually be at the beck and call of their employers, the once fairly clear distinction between working hours and personal hours has blurred considerably. The most obvious implications for such blurring involves wage and hour laws: are employees being compensated for the time they spend answering phone calls and emails at home? Additionally, this blurring of work/life is sure to appear in Title VII cases: What happens when an employee gets the 3 a.m. phone call and gives the wrong answer? O.k., but what happens if the employee gave the wrong answer because he was on necessary medication? What happens if all of the other employees answer their phone calls, texts and emails whenever the boss beckons, but a religious employee won't do so on the Sabbath, holy days, or anytime he is volunteering at his local church (which happens to be almost every night)?
February 22, 2011
Colvin: Empirical Study of Employment Arbitration
Alex Colvin (Cornell ILR) has just posted his new groundbreaking empirical study of employment arbitration. The article is An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Leg. Studies 1 (2011). Though one could make the argument (as Estreicher and others have) that comparing arbitration and litigation outcomes is like comparing apples and oranges, it's hard to argue with the numbers on the repeat-player effect. Here's Alex's abstract:
Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate among the cases was 21.4 percent, which is lower than employee win rates reported in employment litigation trials; (2) in cases won by employees, the median award amount was $36,500 and the mean was $109,858, both of which are substantially lower than award amounts reported in employment litigation; (3) mean time to disposition in arbitration was 284.4 days for cases that settled and 361.5 days for cases decided after a hearing, which is substantially shorter than times to disposition in litigation; (4) mean arbitration fees were $6,340 per case overall, $11,070 for cases disposed of by an award following a hearing, and in 97 percent of these cases the employer paid 100 percent of the arbitration fees beyond a small filing fee, pursuant to AAA procedures; (5) in 82.4 percent of the cases, the employees involved made less than $100,000 per year; and (6) the mean amount claimed was $844,814 and 75 percent of all claims were greater than $36,000. The study also analyzes whether there is a repeat player effect in employer arbitration. The results provide strong evidence of a repeat employer effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, which could be explained by various advantages accruing to larger organizations with greater resources and expertise in dispute resolution procedures. The results also indicate the existence of a significant repeat-employer–arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration.
February 21, 2011
How Not to Discipline an Employee for Theft
Simon Cremer (right), who runs a flooring firm in Witham (Essex, U.K.) discovered that Mark Gilbert (left) had written out a company check to himself and then cashed it. Cremer then paraded Gilbert through the streets of town before taking him to the police station. Gilbert admitted the crime to police and was let off with a warning. Gilbert then sued Cremer for “humiliation” and two years’ lost earnings in the County Court. Now, the The Telegraph reports (hat tip: PJH Law) that the case settled with Cremer paying Gilbert £5,000 in compensation and £8,000 in court costs.
Recently Published Scholarship
- Allen R. Kamp, Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable, 39 Capital U. L. Rev. 1 (2011).
- Jill M. Fraley, Finding Possession: Labor, Waste, and teh Evolution of Property, 39 Capital U. L. Rev. 51 (2011).
- Erica E. Hoodhood, The Quintessential Employer's Dilemma: Combating Title VII Litigation by Meeting the Elusive Strong Basis in Evidence Standard, 45 Valparaiso U. L. Rev. 111 (2010).
- Joshua A. Reece, Throwing the Red Flag on the Commissioner: How Independent Arbitrators Can Fit into the NFL's Off-Field Discipline Procedures Under the NFL Collective Bargaining Agreement, 45 Valparaiso U. L. Rev. 359 (2010).
- David B. Torrey, The Commonwealth Court of Pennsylvania and the Workers' Compensation Act: Background and Jurisprudence. Judge Alexander F. Barbieri, and Selected Precedents, 20 Widener L.J. 87 (2010).
- James L. Crawford & Anne E. Covey, Contribution of the Commonwealth Court to Public Employee Labor Law: The First Forty Years, 20 Widener L.J. 143 (2010).
- Daniel R. Schuckers & James K. Bradley, Contribution of Pennsylvania's Commonwealth Court to Unemployment Compensation Law Since 1970, 20 Widener L.J. 173 (2010).
Standing to Bring Antidiscrimination Claims
Like many of us, I was pleased with the outcome in Thompson v. North American Stainless, LP holding that Title VII’s antiretaliation principle applies to what has been called third party-retaliation, that is, retaliating against B in response to A’s protected conduct. To be effective, of course, B must be someone who A cares about, and in North American Stainless itself plaintiff claimed that employer retaliated for his fiance’s (Regalado) filing a charge of discrimination against it by firing him (Thompson).
To reach its result, the Court framed the issues as twofold: whether Thompson’s firing in such circumstances would violate Title VII and whether the statute granted Thompson a cause of action.
Dividing the inquiry into two separate questions was scarcely inevitable. I mean, if the firing were illegal but Thompson did not have a claim, the only one who could sue would be Regalado, and it’s not clear what her remedy would be – an injunction in her suit ordering the employer to rehire Thompson? That seems a stretch, and, certainly, normal backpay relief would be inapplicable. It’s conceivable that the Regalado could recover for her emotional distress in causing her finance to be fired, but that’s certainly not the most likely of remedies. In the meantime, under this view, Thompson would suffer loss of backpay and possible other damages and recover nothing.
Of course, that’s not what the Court held – it not only found a violation but also held that Thompson could sue, with Justice Scalia writing for a unanimous Court (Kagen recused and Ginsberg/Breyer, who concurred on deference to the EEOC grounds, also joined the Court’s opinion).
Still, this somewhat labored line of analysis suggested that something else was up, and I have learned to look for the hook when the Court dangles an especially juicy worm. I didn’t have far to seek. For the Court, the “more difficult question” was standing. And Scalia began this portion of the opinion rejecting “dicta” in earlier Fair Housing Act cases suggested that Title VII “person aggrieved” standing reached as far as Article III would permit. Such dictum turns out to be “ill-considered.”
Like Goldilocks, Scalia found Article III standing too broad but limiting standing to the employee who engaged in the protected conduct too narrow. Instead, the "just right" standard was drawn from the Administrative Procedure Act, permitting suit by those within the “zone of interests” the statute was designed to protect. Applying that test, Thompson was not mere “collateral damage” of the violation and could therefore sue.
I've never understood "zone of interests" -- except as a phrase that gives the court leeway to allow a plaintiff to sue or not as it chooses. So I'm a little concerned that the test may be used to contract the statute's reach. But beyond that, Scalia's use of the term “collateral damage” does not exactly clarify the issue. Scalia can’t be saying that plaintiffs who are hurt by virtue of discrimination targeted against others suffer only collateral damage and can't sue – that exactly describes Thompson!
And how about those, like the male plaintiffs in Anjelino v. New York Times, 200 F.3d 73 (3d Cir. 1999), who claimed to have been denied employment because the employer did not want to hire women higher up on the eligibility list? They seem to be collateral damage within Scalia’s formulation, which would make the Third Circuit's grant of standing to them incorrect.
But it’s not clear why they are different from Thompson. It’s true that the employer allegedly intended to act against Thompson in order to hurt Regalado, while the Anjelinoemployer, by hypothesis, would have been happy to hire the males if it didn’t have to hire females. But presumably North American Stainless would have been happy to keep Thompson if it didn't want to retaliate against Regalado.
In any event, what’s the point of splitting these hairs when the Court seems to concede there’s a violation to begin with? In Anjelino, had both men and women sued, should the remedy be limited to requiring the employer to hire the females because the males had no standing?
The good news is that the Court did not, expressly at least, overturn the cases that accorded standing for those denied the benefits of interracial association. I assume the interest of whites in asociating with women on a position of equality in the workplace continues to be within Title VII's zone of interests.
In any event, maybe, establishing third-party retaliation standing in North American Stainless is worth the trade-off a unanimous decision contracting the reach of Title VII standing more generally. I leave it to wiser heads to figure that out.
Postscript. The North American Stainless Court avoided deciding which third parties might be protected by its rule – probably “firing a close family member” and probably not “milder reprisal against a mere acquaintance,” but “beyond that we are reluctant to generalize.” Context is apparently all. But the Court did stress “the provision’s standard for judging harm must be objective.” That might literally be true if limited to "juding harm,"
But the logic of the underlying claim – that retaliation is actionable when likely to deter a reasonable employee from engaging in protected conduct-- suggests that subjectivity needs to enter the picture where the employer's motives are concerned. Isn't the correct test whether the actual employer (not a reasonable one) actually believed that acting against B would deter/punish protected conduct by a reasonable employee in A's position?