March 10, 2012
Et Tu, Mario?
When I was a law student in New York, I would on rare occasions treat myself to a meal at a small, neighboorhood Italian place called Po, which was fantastic. That was Mario Batali's first restaurant, but as many readers know, not his last. Evidence of how significantly his empire has grown is the recent settlement he and his business partner made with approximately 1,100 former and current staff over the skmming of tip pools (around 4-5% each night). Batali et al. has agreed to pay the plaintiffs $5.25 million, which says a lot about how much his restaurants earn now. Certainly enough not to be skimming from their employees.
March 9, 2012
February Unemployment Data
The Department of Labor released its February unemployment data today. The short version: the unemployment rate is unchanged at 8.3%, but there were an additional 227,000 jobs this past month. The disparity between the two is due in large part to more people re-entering the workforce as jobs become more available. Not great for the unemployment number, but a good sign for the economy. Other good signs from the report: the Dec. and Jan. job gains were revised up by 61,000; government employment declined by only 6,000 (the previous month was 22,000); hourly wages increased some; and there was a big increase in temp jobs, which often lead the way for other job gains. Still a ways to go, but things still going in the right direction.
Lynk on CBC's Lang O'Leary Report Discussing Canadian Labor Landscape
My good friend, Michael Lynx (Western Ontario Law) was recently featured on the The Lang O'Leary Report, which is the CBC's main business TV show. He appears with Amanda Lang, a journalist, and Kevin O'Leary, the conservative TV host.
Michael was interviewed last night on the Report about the decision yesterday by the federal Minister of Labour Lisa Raitt to refer the pending strikes and lockout by the pilots and the machinists at Air Canada to the Canada Industrial Relations Board. You can catch the show here.
For those who don't have time to watch the whole thing, Michael's interview is at the 19:30 mark.
In any event, this is helpful viewing for anyone trying to understand the current labor situation in Canada.
A recent study in the journal Psychopharmacology found that subjects given the drug propranolol (a beta blocker approved by the FDA for treating high blood pressure) demonstrated less implicit racial bias than subjects given a placebo control. One possibility is that propranolol reduces certain fear responses in the amygdala, and these fear responses affect performance on the test of implicit racial bias. Subjects were also tested to see if the drug affected explicit racial bias, though no significant differences were found on this measure between the two groups.
Maslanka on Combatting Sexual Harassment
Michael Maslanka over at Work Matters has a terrific post on combatting sexual harassment. Although the post is couched in terms of litigtion strategy, the implication -- 100% correct imho -- is that an ounce of prevention is worth a pound of cure. Here's the take-away:
A solid plaintiff's lawyer deposing a manager should ask who is responsible for enforcing the company's anti-harassment policy. An answer not informed by the Buddha would be: "human resources." But a Buddha-based answer would be: "Each of us."
Secunda on Pension Reform
Paul Secunda (Marquette) has just posted on SSRN his article Lessons from the Ontario Expert Commission on Pensions for U.S. Policymakers. As I just mentioned, I agree wholeheartedly that our pension system is in dire need of reform. Here's Paul's abstract:
Professor Harry Arthurs recently served as the sole member of the Ontario Expert Commission on Pensions (OECP) and recommended some 142 recommendations for reforming and reinvigorating Ontario’s occupational pension system. Some of these pension reforms have already been enacted.
This paper explores the process by which the Province of Ontario appointed a commission to study pension reform, the recommendations that were put forth in the Commission report, and why the government has implemented some of these proposals and not others since the report’s publication in 2008. After considering each of these questions, the article concludes by seeking lessons that can be learned from the Canadian experience as the United States continues to consider its own occupational pension reforms. More specifically, the objective of this article is to outline for the Employee Benefit Security Administration (EBSA) politically feasible methods to implement much-needed occupational pension reform in the United States.
Conference on Public Sector Bargaining Around the World
On July 2, 2012, a one-day conference will be held in Philadelphia on public sector collective bargaining around the world. Leading scholars from the United States, Japan, France, Canada, Germany, Greece and Italy will discuss their public sector unions. Each country will be represented by a legal and a non-legal scholar. The conference has been organized by Matt Finkin from Illinois. Marty Malin from Chicago-Kent will be the legal scholar from the United States. The draft program is below.
This program is being bsponsored by the US and Canadian Branches of the International Society for Labor and Social Security Law and by the International Association of Labour Law Journals. (By the way, you should join the US Branch of the ISLSSL. It’s inexpensive, includes a subscription to the Comparative Labor Law & Policy Journal, and provides great opportunities to network with overseas colleagues.) The program is being offered in conjunction with the 16th World Congress of the International Labour and Employment Relations Association, which will be in Philly from July 2-5. www.ilera2012.com. As a result, this will be a good set of events to meet lots of interesting people from around the world.
Zelinsky on Pension Underfunding
Ed Zelinsky has just posted, on OUP log, Public pensions, private equity, and the mythical 8% return. As I've mentioned here, I believe that public pensions are headed for an epic disaster, and grossly inflated rate-of-return esxpectations are a big part of the problem. Here's a teaser for Zelinsky's essay:
Public pension plans should not invest in private equity deals. These deals lack both transparency and the discipline of market forces. Private equity investments allow elected officials to assume unrealistically high rates of return for public pension plans and to make correspondingly low contributions to such plans. This is a recipe for inadequately funded pensions, an outcome good for neither public employees nor taxpayers.
Sperino on T7 & Proximate Cause
Sandra Sperino (Cincinnati) has just posted her article Discrimination Statutes, the Common Law, and Proximate Cause on SSRN. Though the article not now downloadable, it should be imminently. Here's the abstract:
The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.
Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both proximate cause and employment discrimination law change, depending on the particular context in which they are invoked. Proximate cause analysis is highly dependent on the underlying tort to which it is attached. None of the types of employment discrimination claims fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause.
This Article will accomplish three tasks. First, it develops an architecture for determining when courts have the appropriate authority to import proximate cause into federal statutes. Second, it argues that Title VII already contains liability limiting principles that make the use of proximate cause both unnecessary and inappropriate. Finally, it demonstrates theoretical and practical problems with applying proximate cause in discrimination cases.
4th Circuit ADHD-as-Disability Opinion
Long-term blog reader Jon Harkavy (Patterson & Harkavy) sends us word of this Fourth Circuit decision. I'm stealing his description of the case:
[Halpern v. Wake Forest University Health Sciences is a ] Fourth Circuit decision issued earlier this week involving the discharge from medical school of a student afflicted with ADHD. The panel unanimously rejected his ADA claim, holding that he was not "qualified" with or without accommodation of his disability. The opinion is noteworthy for its clarity on how this kind of claim is to be analyzed and for its definition of the degree of deference to be shown to a medical school's decision about allowing its students to pursue a degree in order to become a physician.
March 8, 2012
Amending the Hatch Act?
There appears to be a move in Congress to loosen up some of the restrictions of the Hatch Act, particularly those that apply to state and local employees. The Office of Special Counsel has pushed for the changes, which several Democrats have sponsored; some Republicans have already signed on. The Washington Post summarizes the proposals:
The legislation would allow candidates to seek local partisan positions even if they hold state or local government jobs that involve federal funding. The measure also would allow a greater range of penalties for federal employees who violate Hatch Act provisions. Currently, federal violators must be fired, even for minor offenses, unless the Merit Systems Protection Board unanimously agrees to a milder punishment. . . .
Under the legislation, District government employees, who currently face the same rules as federal workers, would be treated as other state and local government employees.
Provisions in current law that prohibit state and local workers from using their official positions to interfere with an election or a nomination and prohibit them from coercing other employees to contribute to a person or a party for political purposes will remain in effect.
This is an area that could definitely use some updating, particularly state and local workers who often are unaware that they're covered.
D.C. Circuit Enforces Construction 9(a) Relationship
In its recent Allied Mechanical Services decision, the D.C. Circuit held that the employer and union established a 9(a) bargaining relationship in large part through a settlement of the NLRB's attempt to get a Gissel bargaining order. The 1991 settlement wasn't explicit, but said that the employer would recognize and bargain with the union, if requested. In this case, the union alleged that the employer violated its duty to bargain by making unilateral changes, refusing to furnish information, and withdrawing recognition; the employer responded that there was only a 8(f) prehire agreement which allowed it to unilaterally stop bargaining. But the court agreed with the NLRB that the settlement, the lack of a 8(f) agreement prior to that settlement, and other factors meant that there was a 9(a) relationship. This holding is helpful in limiting an earlier D.C. Circuit decision, Nova Plumbing, that suggested a possibly decreased willingness by the court to find 9(a) agreements in situations like these.
Hat Tip: Jon Ross
March 7, 2012
Second Edition of The Global Workplace with Teacher's Manual
On behalf of her co-authors, Susan Bisom-Rapp (Thomas Jefferson School of Law) announces the publication on March 14th of the Second Edition of The Global Workplace – International and Comparative Employment Law: Cases and Materials.
The authorial team is the same as the First Edition: Roger Blanpain, Susan Bisom-Rapp, Bill Corbett, Hilary Josephs, and Mike Zimmer. The second edition will appear in the U.S. as an Aspen publication and in Europe, it will appear under the Kluwer Law International imprint.
Susan tells us that one of big challenges of producing the Second Edition was grappling with the global economic crisis, which is therefore featured prominently in this edition. Of course, there have also been many legal changes since the first edition was published in 2007. The authors have also completed the Teacher’s Manual, which runs about 250 pages.
You can find the Aspen press release here.
I used the First edition on numerous occasions for both teaching and research purposes and have always found it a great help in assisting my understanding of how the labor and employment law regimes of other countries operate. I look forward to seeing the new edition.
Seventh Circuit Invites En Banc Petition for ADA Case of Accommodation
Some highlights from Sam's post on his blog, the Disbaility Law Blog, entitled: Seventh Circuit Panel Invites En Banc Petition Regarding Reassignment:
As ADA mavens know, there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position. The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position. The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant. The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled. (Disclosure: I was one of Huber's counsel in the Supreme Court.)
Today, a panel of the Seventh Circuit issued an opinion that invited an en banc petition asking it to change its position on this issue. Here's the key language, from a case entitled EEOC v. United Air Lines, Inc.:
In this case, the Equal Employment Opportunity Commission (EEOC) asks this court to change its interpretation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). The EEOC contends that the ADA requires employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified. However, this court has already held, in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), that the ADA has no such requirement. The EEOC argues that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling. Several courts in this circuit have relied on Humiston-Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality. In accordance with this circuit’s case law, we affirm the district court’s holding that the ADA does not mandate reassignment. However, this circuit might reconsider the impact of Barnett on Humiston-Keeling.
Should be an interesting case to watch out for.
March 6, 2012
GOP Voter ID Law Enjoined by Wisconsin State Court
A state court judge in Wisconsin today has temporarily enjoined the operation of a voter ID law in Wisconsin enacted by the GOP legislature. The bill would have made it harder for many historically oppressed groups and elderly citizens to vote in the coming recall and federal elections based on largely hypothetical concerns about voter fraud.
Although not strictly a labor and employment law issue, I bring this decision to blog readers' attention because these GOP Voter ID laws, like the anti-collective bargaining laws which preceded them, are sponsored by ALEC, the conservative monolith that provides conservative legislators with model legislation throughout the country. Taken together, these laws represent an orchestrated attempt to disenfranchise historically Democratic Party voters and their unions allies.
The temporary injunction in NAACP v. Walker isssued today in Dane County (Madison) Circuit Court by Judge Flanagan can be found here.
March 5, 2012
A Private Right of Action Under NLRA?
That's the proposal by Richard Kahlenberg and Moshe Marvit in a recent New York Times op-ed. Looking for a solution to the low rate of unionism, the authors propose expanding Title VII to include protections for union activity:
[T]he greatest impediment to unions is weak and anachronistic labor laws. It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education. This would enshrine what the Rev. Dr. Martin Luther King Jr. observed in 1961 at an A.F.L.-C.I.O. convention: “The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together, we can be architects of democracy.”
Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.
I made a related argument at one point, as part of a much larger reform effort, so I have some sympathy with the proposal. That said, there would be something lost in moving to private rights of action. Although public enforcement would remain possible, one only has to look at the EEOC to see how that would end up. And, as I saw first-hand, losing public enforcement means that cases without significant damages will have a difficult time finding an attorney.
Bagchi on Parallel Contract
Aditi Bagchi (University of Pennsylvania Law School) has recently posted on SSRN her new paper: Parallel Contract.
Here is the Abstract:
This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic model; in particular, the obligations of the repeat contractor should be understood by reference to its most recent practices and communications with any of the other parties in a given setting.
The second part of this paper excavates the deep reasons why some theories of contract resist distinct models of contract. I propose a typology of contract theory that roughly tracks John Rawls’ distinctions between pure, perfect and imperfect theories of procedural justice. Pure and perfect theories of contract will tend to justify the rules by which we identify and enforce contractual obligation based on general features of contract; hence those rules will be deemed appropriate across contractual settings. Theories of contract which regard contract as an imperfect means by which parties manage exchange are more likely to endorse specialized rules, such as those appropriate to parallel contract.
The piece suggests an alternative to the implied contract paradigm in the interpretation of employment contracts. It is a contract theory piece, but Aditi sees employment contacts as the primary context of application.
I think Aditi is correct that her paper will have special relevance for the world of employment contracts and the world of employment-at-will. Check it out!