May 4, 2012
Warns Institute June 21-22 in Louisville
Arianna Levinson writes to tell us that the 29th Annual Carl A. Warns Jr. Labor & Employment Law Institute will be held June 21-22 in Louisville. This event always draws a great crowd of practitioners, public servants, and professors. UAW President Bob King is the keynote speaker; other speakers include Paul Secunda (Marquette) and Susan Cancelosi (Wayne State).
May 3, 2012
Kim on Electronic Privacy & Ee Speech
Pauline Kim (Washington U. - St. Louis) has just posted on SSRN her article (forthcoming 2012 Chicago-Kent L. Rev.) Electronic Privacy and Employee Speech. Here's the abstract:
The boundary between work and private life is blurring as a result of changes in the organization of work and advances in technology. Current privacy law is ill-equipped to address these changes and as a result, employees’ privacy in their electronic communications is only weakly protected from employer scrutiny. At the same time, the law increasingly protects certain socially valued forms of employee speech. In particular, collective speech, speech that enforces workplace regulations and speech that deters or reports employer wrong-doing are explicitly protected by law from employer reprisals. These two developments — weak protection of employee privacy and increased protection for some socially valued forms of employee speech — are at odds because privacy and speech are closely connected. As privacy scholars have emphasized, protecting privacy promotes speech values by granting individuals space to explore and test new ideas, and to associate with like-minded others — activities that are often important precursors to public speech. Similarly, in the workplace context, some measure of privacy to explore ideas and communicate with others may be necessary to ensure that employees actually speak out in socially valued ways. Ironically, then, the law is simultaneously expecting more from employee speech and protecting employee privacy less, even though the latter may be necessary to produce the former.
Recently Published Scholarship: Comparative Labor Law & Policy J.
Comparative Labor Law & Policy Journal
Vol. 33, #3 (2012)
- Alan Bogg and Tonia Novitz, Investigating "Voice" at Work, p. 323.
- Eric Tucker, Labor's Many Constitutions (and Capital's Too), p. 355.
- Alan Bogg and Keith Ewing, A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada, p. 379.
- Stuart White, Liberal Neutrality and Trade Unions, p. 417
- Simon Deakin and Artistea Koukiadaki, Capability Theory, Employee Voice, and Corporate Restructuring: Evidence from U.K. Case Studies, p. 427
- Wanjiru Njoya, Job Security in a Flexible Labor Market: Challenges and Possibilities for Worker Voice, p.459
- Charlotte Villiers, Why Employee Protection Legislation Is Still Necessary, p.481.
Wal-Mart Settles with DOL in FLSA Investigation to the tune of $4.8 Million
It's my favorite foil for employment classes for a reason. According to the DOL, Wal-Mart has agreed to pay more than $ 4.8 million in back wages and damages to 4500 workers improperly classified as exempt from the FLSA's overtime provisions. The superstore will also pay about $450,000 in civil fines. From the press release,
The violations affected current and former vision center managers and asset protection coordinators at Wal-Mart Discount Stores, Wal-Mart Supercenters, Neighborhood Markets and Sam's Club warehouses. Wal-Mart failed to compensate these employees with overtime pay, considering them to be exempt from the FLSA's overtime requirements. The Labor Department's investigation found that the employees are nonexempt and consequently due overtime pay for any hours worked beyond 40 in a week.
"Misclassification of employees as exempt from FLSA coverage is a costly problem with adverse consequences for employees and corporations," said Secretary of Labor Hilda L. Solis. "Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action to ensure that workers receive the wages they have earned."
Under the terms of the settlement, Wal-Mart has agreed to pay all back wages the department determined are owed for the violations in addition to paying liquidated damages to the employees and a penalty to the department. The civil money penalties assessed stem from the repeat nature of the violations. Wal-Mart, which operates more than 3,900 establishments in the United States, corrected its classification practices for these workers in 2007, and negotiation over the back pay issues has been ongoing since that time. A third-party administrator will disburse the payments to the affected employees.
"Our department has been working with Wal-Mart for a long time to reach this agreement," said Nancy J. Leppink, deputy administrator of the Wage and Hour Division. "I am very pleased that staff in our Southwest region persevered, ensured these employees will be paid the back wages they are owed and brought this case to conclusion. Thanks to this resolution, thousands of employees will see money put back into their pockets that should have been there all along. The damages and penalties assessed in this case should put other employers on notice that they cannot avoid their obligations to their employees by inappropriately classifying their workers as exempt."
This settlement comes at the same time that Wal-Mart's bribery scandal in Mexico appears to have cost the company more than $10 billion in stock value. At least one pension fund has urged a vote against the current directors. Maybe this is part of an effort to clean up more generally?
May 2, 2012
The Second Flynn IG Report: More Ethical Violations
[Post had been updated with regard to possible removal of Board Member]
The IG's second report on Member Flynn has been released and it's significant. According to the report, some of Flynn's comments after the initial report prompted them to request more of his emails that went back to approximately Schaumber's departure from the Board. Based on those emails, the IG found multiple violations of the Executive Branch Ethical rules, including releasing to former Member Schaumber four unissued dissents, a draft majority decision, and non-public information on the NLRB processing of cases. For some news summaries of the report see here, here, and here.
On a slightly humorous note, Flynn help write/edit an op-ed with Schaumber that appeared under Schaumber's name. Then-Chair Liebman sent Flynn a link to the op-ed with the message: "Trust you saw this. . . . Perhaps even wrote it." On a less humorous note, Flynn responded that he wasn't aware of the blog in which the op-ed appeared (The Hill's Congress Blog). This isn't funny because only three hours earlier, Schaumber had sent Flynn a link to the op-ed as it appeared in the blog, and Flynn has responded to Schaumber that maybe the op-ed would get picked up in other outlets.
There's also some interesting discussion between Flynn and Schaumber regarding Flynn's nomination, which was apparently largely Schaumber's doing. The raised concern with the IG about the appearance of a quid pro quo involving the confidential information.
Flynn, via his attorney has responded that, while not always "reflecting perfect judgment" he hasn't violated any ethics rules. The attorney also objects to the manner in which the IG has released his reports and information about the case.
Belying Flynn's current arguments that he didn't do anything wrong was the fact that he specifically asked Scahumber about the ethical restraints on discussing non-public information about the pending elections rules, which he said seemed different than discussing pending cases. That last clause appears to be an admission, albeit an unintentional one, that his release of information about unissued cases was unethical.
This report only magnifies my early concerns about Flynn's impact on the Board's operations. Flynn is saying that his disclosures weren't unethical; as a result, if I were a Board member, I would have to assume that any correspondence can't be regarded as confidential. Although Flynn's attorney suggests that this isn't a big deal in most cases, that's certainly not always, if ever, true. Moreover, if the Board considers more rulemaking, such as additional election procedures, this disclosure issue is a huge problem. It's the exact sort of issue that Flynn was sharing, and it's also the type of issue that needs a thorough consideration and discussion among the Board members and their staffs. That can't happen is Flynn is still there. The IG's report discusses this and other related problems at length in its analysis.
This leads to a question about how long Flynn can stay on the Board. Assuming that he doesn't voluntarily step down, as Rep. Miller has called on him to do, things could get interesting. Under Section 3(a), "[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." However, these allegations do not relate to Flynn's time in office. Therefore, it appears that the White House could not try to remove Flynn unless something comes out about more recent misconduct (the White House says that it's currently looking at its options; the ties to Romney's campaign and the weird distortion the campaign is making to distance itself could give some incentive to press on this.) If that doesn't happen, it's not like Congress would impeach him--especially without criminal convictions which, even if charges were brought, would take a long time. In short, either he's going to step down or he'll remain at the Board until his recess appointment expires at the end of 2013.
Hat Tip: Patrick Kavanagh
As an aside: The report noted a motion to recuse Liebman from the NYU case because she allegedly sought empirical evidence to bolster her opinion in an early case on graduate students, Brown. I never thought Congress's prohibition against the Board conducting economic research extended to the use of outside research, but this shows how nuts the prohibition is. The Board makes makes so many presumptions, often in different directions, that it screams for more empirical evidence not less.
May 1, 2012
Gender Disparity on Power Rules
A just released study by the Yale Law Women documents that class participation at Yale Law tends to be disproportionately male (H/T to Jeff and Lior Strahilevitz at Prawfblawg). Although the report offers prescriptive advice for Yale faculty and students on how to close the gap, it does not offer an empirically grounded explanation for why the gap exists in the first place. Coincidentally, I recently read another empirical study that appears to offer an answer.
BrescollvIn an article in the 2012 volume of Adminstrative Science Quarterly, Yale School of Management professor Victoria Brescoll (photo above) provides compelling evidence that different power rules apply to women than men. Brescoll's article, "Who Takes the Floor and Why: Gender, Power, and Volubility in Organizations," found that when women possess the same objective measures of power as men, they are reluctant to use that power to speak up (i.e., be voluble) in organizational settings.
Why are powerful women less likely to speak up? Because of fear of backlash. Further, the fear is justified. Specifically, holding the objective measures of power constant, Brescoll found that when women were more voluble in meetings, they tended to be viewed as less likeable and deserving--and here is the kicker, less likeable and deserving at roughly the same levels by both male and female peers. In contrast, when powerful men were more voluble, their peers--both males and females--viewed them as more likeable and more deserving.
Wow. This is quite a problem. Brescoll observes that "the presciptions for powerful men's and women's behavior may be much more comprehensive than originally hypothesized (i.e., power men should display their power, while powerful women should not)." This differential in power rules is not something amenable to a quick, simple fix. Its root cause appears to be buried deep in both the male and female subconscious. It's hard to fix what we don't understand.
April 29, 2012
Labor Law Roundup
- On the eve on Monday's start date for the NLRB'S new election rules, the Board has published with the final rules additional comments by Chairman Pearce (concurring) and Member Hayes (dissenting) on the rules' legality.
- Keeping on the new election rules theme, Acting General Counsel Solomon has issued new guidance for the regional offices' implementation of the rules and a set of frequently asked questions for the public.
- The Washington Post's Steven Pearlstein writes about airline unions turning the tables on American Airlines, which had go into bankruptcy in part to void its collective-bargaining agreements. The unions responded by negotiating an agreement with US Airways to allow that company to buy American and eventually make the new agreement apply to current American employees.
- Politico discusses labor unions' recent political efforts and asks whether Wisconsin and otherr states' attacks on unions may backfire.
- An update on the law firm workers fired for wearing orange shirts. The firm says the firings were for harassing an office manager to get her to quit. This, of course, might be an admission of an unfair labor practice as trying to get rid of a manager may be protected by the NLRA if it relates to working conditions (will someone who knows labor law please talk to this firm). However, if the allegations of harassment and obscene language are true, that protection would be eliminated.
- The D.C. Circuit upholds the NLRB's most recent New York New York decision. Notably, the panel had two strongly conservative judges in its 3-0 decision (with one concurrence): Henderson, Kavanagh, and Rogers.
- And finally, the Bachelor and Bachelorette shows are being sued for race discrimination. Neither have had a main bachelor/bachelorette of color out of 23 seasons total. You can Download Bachelor complaint.
Hat Tip: Michael Ewing. Michael Lightner, & Dennis Walsh
Rosenthal on Disparate Impact
... [A] cloud hangs over disparate-impact liability. In Ricci v. DeStefano, the United States Supreme Court concluded that an employer's decision to discard an employment practice because it produced a racially disparate impact amounts to a form of racial discrimination against nonminorities, at least absent “a strong basis in evidence to believe it would face disparate-impact liability . . . ." By holding that an employer’s abandonment of an employee selection mechanism because it produces too many successful nonminority candidates amounts to racial discrimination, Ricci cast grave constitutional doubt on disparate-impact liability. Contemporary equal protection jurisprudence requires strict scrutiny for all race-conscious governmental action, even when it has a remedial or otherwise ostensibly benign justification. Indeed, in his separate opinion, Justice Scalia expressed serious doubt about the constitutionality of disparate-impact liability.
Ricci has provoked a torrent of criticism from those who regard it as an indefensible limitation on the ability of the civil rights laws to remediate discrimination. The literature does not yet contain, however, an account that endeavors to harmonize disparate-impact liability with contemporary equal protection jurisprudence. The task of this article is to provide that account. Part I demonstrates that the holding in Ricci was essentially compelled by the structure of contemporary equal protection jurisprudence. Part II endeavors to reconcile disparate-impact liability with strict scrutiny. Part III submits that the the fate of disparate-impact liability tells us much about the character of equal protection. Asking the question whether disparate impact can be saved ultimately tells us whether equal protection jurisprudence is to embody a conception of a colorblind Constitution so robust that it effectively prevents the government from addressing racially skewed inequality of opportunity. While it proves difficult to disentangle race-conscious governmental action, even for remedial purposes, from the rigors of strict scrutiny, Part III contends that there is good reason to resist the view that the government must always remain colorblind, even in the face of demonstrable inequality of opportunity that locks racial minorities into a position of economic disadvantage.