Friday, August 24, 2012

Olympics Fosters Flexible Work Schedules

OlymFrom PJH Law:

An interesting legacy of the Olympic Games may involve London working practices.  Many employers, during the period of the Games, embraced flexible working practices to allow employees to watch the Games and to avoid problems travelling to and from work. London law firms were amongst these.  Such practices proved to be so successful that the Law Society are now encouraging law firms to adopt flexible working practices beyond the Games and have produced a protocol to assist firms.  This includes practical advice, checklists and case studies demonstrating the business benefits and may be of interest to any employers (not just law firms) thinking of adopting such practices.  This may not have been a legacy originally envisaged by Team Coe/Beckham etc but will be of significant impact nonetheless.


August 24, 2012 in Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Thursday, August 23, 2012

California Domestic Worker Bill of Rights

 As you might recall from our post at the time, the California General Assembly passed the California Domestic Workers Bill of rights, AB889. The bill is now before the California Senate, and the California Domestic Workers Coalition is urging people to take action in support if the bill. As part of that, Amy Poehler has made this PSA.

I love Ms. Poehler, not just because I think she's funny, but also because she's one of the creators of Smart Girls at the Party: Change the World by Being Yourself, a website and YouTube channel that provides a positive multidimensional message for and about girls. 

We'll keep you posted on any news related to AB889.


August 23, 2012 in Employment Discrimination, Labor and Employment News, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 22, 2012

Maslanka's SCOTUS Predictions

MaslankaMike Maslanka (of Work Matters fame) has published in Texas Lawyer his predictions for how the two employment cases on the Supreme Court docket will come out, as well as his thoughts on what issues the Court should take up in its next term.  See Hot Employment Law Issues at the High Court.  This is worth a read.



August 22, 2012 in Employment Discrimination, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2012

Green on Against Employer Dumpster Diving for E-Mail

GreenMichael Z. Green (Texas Wesleyan University School of Law)  has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail.

Here is the Abstract:    

Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.

As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.

Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.

I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun.  It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test.  I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases.


August 21, 2012 in Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Turning the Tables

New ImageIt’s pretty well established that, for the  antidiscrimination statutes at least, there’s no personal liability, (a position which has always seemed questionable to me but as to which I’m in the distinct minority). The effects of this rule, however, can be blunted if an employer can obtain indemnification from the supervisor responsible for the violation. Such efforts are rare, but they are not unknown, and a recent example illustrates the point. Howard University v. Watkins, 2012 U.S. Dist. LEXIS 58863 (D.D.C. April 27, 2012), denied a former assistant dean’s motion to dismiss the university’s claims of indemnification and fraud.

The case arose out of a disabilities discrimination claim brought against Howard by one Goodwin, which settled for $253,000 in damages and attorneys’ fees.  The university had terminated Goodwin, on Watkins’s recommendation for what she claimed were his “behavior problems”; Howard claimed it would not have done so had Watkins revealed her knowledge of Goodwin’s HIV status and that she had denied him a requested accommodation.

Looking to common law indemnification arising from express or implied contracts, the court found that Watkins would be liable if Howard proved its allegations. The court also upheld Counts for fraudulent concealment, fraud, and misrepresentation. The distinction between the various Counts suggests that the defendant might have been liable even if she had not been guilty of fraud, perhaps the discrimination itself.

Under this case, then, the true perpetrator would be responsible for all harm caused by an act of discrimination, presumably not only any settlement or judgment paid by the employer but also the employer’s own costs of the defense of an action. To the extent that employers can utilize indemnification, problems of agents’ pursuing their own interests rather than those of their principal would be reduced.

So why don’t employers frequently resort to indemnification? The obvious reason is that they have the usual remedy of firing the supervisor rather than pursuing an expensive claim that may well lead to an uncollected judgment. Few former “acting assistant deans of students” will be able to pay quarter million dollar judgment, and pursuit of the claim itself is costly (the case was filed in Maryland in 2006 and still had not been tried in the District of Columbia when the opinion was handed down).

Then there’s the question of employee morale.  Few universities would want their deans to fear that they may be on the hook for far more than their annual salaries. In Watkins itself, the employer may well have thought that the defendant’s conduct was so outrageous that few other supervisors would feel threatened by the lawsuit. There might also have been a felt need to back compliance and human resources divisions by taking action against a supervisor who Howard thought had pulled the wool over the University’s eyes.

But beyond these concerns, the cause of action has its own problems. Northwest Airlines v. Transportation Workers Union, 451 U.S. 77 (1981), rejected indemnity or contribution under Title VII or the Equal Pay Act because it would disrupt the “comprehensive character” of statutory remedies. Watkins distinguished that precedent because it had recognized that indemnification might be permissible where state law provided the rule of decision and allowed for indemnification. Thus, it was critical to the case that (1) the DC Human Rights Act barred the underlying conduct; (2) the plaintiff in the original suit had sued under the DCHRA; and, apparently, (3) the Human Rights Act itself permitted individual liability, presumably because that statute’s comprehensive scheme would not be disrupted.  This combination of circumstances will not always obtain.

Finally, there’s the question of whether the Howard gave Watkins the opportunity to approve the settlement. Even where a judgment is concerned, an indemnitor must prove that it mounted a reasonable defense before an indemnitee s liable. When a settlement is concerned, the indemnitor is also supposed to tender the defense to the indemnitee or at least give her the opportunity to respond to the proposed settlement.  


Thanks to Joanna Solloway for her help with this.

August 21, 2012 in Beltway Developments | Permalink | Comments (2) | TrackBack (0)

Monday, August 20, 2012

Recently Published Scholarship: Toledo Symposium on Public Sector Labor Law


Public Sector Labor Law at the Crossroads Symposium

43 Toledo L. Rev. (2012)

  • Joseph E. Slater, The Rise and Fall of SB-5: The Rejection of an Anti-Union Law in Historical and Political Context, 473.
  • Ellen Dannin, Privatizing Government Services in the Era of ALEC and the Great Recession, 503.
  • Matthew Dimick, Compensation, Employment Security, and the Economics of Public Sector Labor Law, 533.
  • Charlotte Garden, Teaching for America: Unions and Academic Freedom, 563.
  • William A. Herbert, The Chill of a Wintry Light? Borough of Duryea v. Guarnieri and the Right to Petition in Public Employment, 583.
  • Anne C. Hodges, Southern Solutions for Wisconsin Woes, 633.
  • Michelle T. Sullivan, Binding Arbitration as a Means of Settling Public Sector Union Contracts: A Process with an Image Problem?, 655.


August 20, 2012 in Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Labor Law Roundup

CaterpillarSome recent labor and employment developments:

  •     The Raleigh News & Observer had a nice three-part series on businesses avoiding their employment and tax law consequences by misclassifying workers.  It focuses on a local bricklaying subcontractor and does a good job tying in the different entities that are affected by these companies, including those not usually discussed, such as competing businesses (not to mention my employer, UNC).
  •     Possible settlement of Caterpillar strike?  Steven Greenhouse has an update, which shows that there's serious doubt whether it will happen because the local union isn't happy with the proposed settlement negotiated at the district level.
  •     A strike at a South African platinimum mine has become deadly.  In addition to 10 other deaths associated with the strike, police fired on striking miners wielding machetes, killing at least 18. One interesting aspect of this strike is that it has pitted a newer union that wants faster improvements against the more traditional union, which is associated with the government.  Those familiar with labor history in the U.S. will recognize that this story sounds very familiar to what we used to see here prior to the Wagner Act.


August 20, 2012 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

ILO's Maritime Labor Convention Approved


From the ILO's press release:

The ILO has received the 30th ratification of the Maritime Labour Convention, fulfilling the last condition for the first global standard that spans continents and oceans to go into effect in a year’s time.
The MLC was adopted unanimously in 2006 but there were two requirements still to be met before it could come into force. The ratification by Russia and the Philippines fulfills the requirement that at least 30 ILO member countries ratify the Convention. The other requirement - that ratifying countries represent 33 percent of the world’s gross shipping tonnage - was met in 2009.

The 30 countries represent nearly 60 percent of the shipping tonnage. This means that seafarers working on more than 50 per cent of the world’s international shipping will be covered by the new Convention.

Under the MLC, every seafarer has the right to:

  • A safe and secure workplace that complies with safety standards.
  • Fair terms of employment.
  • Decent working and living conditions on board ship.
  • Health protection, medical care, welfare measures and other forms of social protection.

Unsurprisingly, the U.S. has not ratified the MLC.


August 20, 2012 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Seton Hall Forum


The Seventh Annual

Seton Hall Employment & Labor Law
Scholars' Forum

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across employment and labor law. To that end, Seton Hall will convene its seventh annual Employment & Labor Law Scholars' Forum on October 5th - 6th.

This year’s Forum will feature four presenters:

Bottom Up Workplace Law Enforcement: An Empirical Analysis
Charlotte S. Alexander, Georgia State University
Inferring Desire
Jessica Clarke, University of Minnesota
Obesity Discrimination: An Issue of Disability or Appearance?
Veronica S. Root, Notre Dame
The Tort Label
Sandra F. Sperino, University of Cincinnati

Comment and critique will be provided by the following scholars:

Timothy P. Glynn, Seton Hall University School of Law
Tristin K. Green, University of San Francisco School of Law
Melissa Hart, University of Colorado Law School
Pauline T. Kim, Washington University School of Law
Charles A. Sullivan, Seton Hall University School of Law
Marley S. Weiss, University of Maryland Francis King Carey School of Law
Kimberly A. Yuracko, Northwestern University School of Law
Michael J. Zimmer, Loyola University, Chicago, School of Law



August 20, 2012 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)