September 8, 2012
Congratulations to Workplace Prof Blog ...
... on receiving this morning its two millionth visitor. Thanks to all who contribute to Workplace Prof Blog by reading, sharing ideas for new posts, guest posting (if you haven't but are interested, let one of our editors know), and for the heartwarming thanks-for-the-blog emails the editors receive every once in a while that help keep our motivational juices flowing.
September 7, 2012
Judge Defers Suit on State Secret Ballot Laws
As we've discussed in the past, a handful of states passed laws that purported to require a secret-ballot election to unionize a workforce. I say "purported" because, in the face of preemption challenges, the Attorney Generals of the states said that the measures only require secret ballots if there is an election ordered. I noted before that this basically says that the measures have absolutely no practical impact.
Acting on a preemption suit filed by the NLRB against Arizona, a district judge granted the state summary judgment. Before you get excited one way or another--or trust media reports that Arizone "won" the case, the judge's reasoning was basically that the states' interpretation of the law would, if actually followed, avoid preemption because it mirrors the NLRA. Thus, the judge stated that a preemption challenge is unripe but that the NLRB could file an as-applied challenge later if one of the states tried to apply the law differently--i.e., tried to prevent voluntary recognition. The operative portion of the decision states that:
Although Article 2 § 37 guarantees the "right to vote by secret ballot for employee representation," it does not, on its face, address how, when, or by whom these elections are conducted. Without an actual state court proceeding addressing Article 2 § 37, we are left to speculate how state litigation concerning the right to a secret ballot may arise, and precisely what conduct might be challenged. However, given that the NLRA places the responsibility on the NLRB to conduct secret ballot elections, the outcome of which is only judicially reviewable in the context of an unfair labor practice proceeding, we conclude that state court proceedings invoking Article 2 § 37's guarantee of secret ballot elections will at least arguably overlap with the NLRB's jurisdiction under § 8 of the NLRA to address unfair labor practices.
Accordingly, the decision does nothing to undermine the NLRB's argument that any state attempt to cut-off an NLRB-approved means of unionization would be preempted. Indeed, the judge emphasized that both voluntary recognition and elections are valid means to select a union.
After all the labor craziness in the NFL last season, you'd think they would deserve a year off. But, as NFL are well aware, negotiations between the league and the referees are still at a standstill. The result has been that the NFL locked out the referees this summer and has since been using replacement referees. During the preseason, this has not worked out well as there were many instances of replacement refs blowing calls. During Wednesday night's season opener, however, the refs seemed to do a better job. Whether that continues this weekend, when there are numerous games remains to be seen and the answer could well influence the league's ability to cotinue using the replacement refs. The sides still seem far apart, but pressure from players and fans could move the NFL some. Or not; the league stood pretty firm in its negotations with the players last year, so it may be working hard to set down some markers with its employees. Stay tuned.
August Employment Data
The Department of Labor released its employment data for August today and it was more of the same--not awful, but not good either. There were 96,000 jobs added the last month; 103,000 jobs in the private sector and 7,000 less government jobs. The two previous months were revised downward by about 20,000 jobs a month. Given the number of people dropping out of the labor market, the unemployment rate dropped from 8.3% to 8.1%.
This may spur the Federal Reserve to take more aggressive actions, but we'll see . . . .
September 6, 2012
Cleaning off my to-post list round-up
- The California Senate passed AB 889 (Domestic Workers bill of rights) late last week. It goes to Governor Brown for signature. Then, of course, the workers have to know they have rights as New York is discovering.
- People stay in their jobs primarily because they like what they do and they feel connected to their coworkers and employer, according to the National Retention Survey.
- More on the EEOC's duty to conciliate from Molly DiBianca at the Delaware Employment Law Blog.
- Honest Tea ran an experiment on people's honesty across the country and have made the data available here. It's broken down in some very interesting ways: by geography, hair color, and more. Could/should employers use this information to make decisions about potential employees in hiring?
- Is business school culture to blame for sexual harassment in the workplace? Here and here.
- Women are more likely than men to see nuance in making decisions. Carol Gilligan made that point in moral judgments, but it's now backed up at an earlier stage of cognition: categorizing.
- It takes three kids to kill your career if you're a woman in Australia.
- Sometimes, it seems, women are paid less because they're women.
- Jerks make more money.
- The Seventh Circuit suggests that it may not show discrimination if a supervisor says that he (the supervisor ) got his job because he was white, calls a Hispanic employee a “gold-digger” when he asked for a raise, says “I’m white and I’m right”, yells at a Hispanic employee having a heart attack to “Get the hell out of my office. Go die somewhere else,” say on numerous occasions that he does not like Spanish people, and refer frequently to Hispanics as “dummies” and “stupid.” The "real trouble" comes when that supervisor stops hiring because only Hispanics are applying. Yay?
- Misrepresenting yourself on an insurance application doesn't allow an agency to find that you are what you said there when you said something different to the agency and where the agency has lots of evidence that the representation to it was accurate. Plus, employment immigration law is hard.
- Lawyers who contract with the federal government to provide general legal advice or other legal services are governed by federal executive orders requiring compliance with federal contractor reporting requirements -- and the OFCCP can come in and make you: Download OFCCP v. O'Melveny & Myers October 31, 2011 (h/t Patricia Schaeffer, EEOIMPACT LLC).
And if I don't start to get some balance between work and life (or cut down on work), I'm going to end up like this poor woman, who died at her desk, but no one noticed. Whew. To-do list cleared off for the moment. I feel better.
Recently Published Scholarship: ABA JLEL
Volume 27, No. 3, Spring 2012
- Seth Thompson, The Editor's Page, P. v.
- Eric Schnapper, Review of Labor and Employment Law Decisions from the United States Supreme Court's 2010-2011 Term, p. 329.
- Michael W. Garrison Jr. and Ryan W. Rutledge, The Standard for Obtaining Section 10(j) Interim Injunctive Relief Under the National Labor Relations Act: The Interplay Between the NLRA and the First Amendment, p. 365.
- Jonathan M. Turner and Jesse M. Koppin, Discovery in NLRA Section 10(j) Proceedings, p. 385.
- Debrai G. Haile and Sara Leitenberger, Improper and Abusive Written Discovery Requests in Single- and Multiple-Plaintiff Employment Cases, p. 397.
- Christopher Lage, Conducting an Ethically Sound Internal EEO Investigation, p. 415.
- Gwen Thayer Handelman, Tears and Fears: The Illusory Ethical Issues Raised by Strengthening Enforcement of the LMRDA Persuader Reporting Rules, p. 433.
- Celeste Drake, U. S. Trade and Economic Policy: American Workers Need More Than Strong Labor Chapters, p. 455.
- Dr. Mary Dunn Baker, Class Certification Statistical Analyses Post-Dukes, p. 471.
- Jacob Schutz, Association Discrimination Under the Americans with Disabilities Act: The Case of Dependent Healthcare Costs, p. 485.
Helfand on Hosanna-Tabor & More
Michael Helfand (Pepperdine) has just posted on SSRN his article (forthcoming Minn. L. Rev.) Religion's Footnote Four: Church Autonomy as Arbitration. I've just skimmed the article and find it fascinating -- I can't wait to read it more carefully. Here's the abstract:
While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system.
Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.
September 5, 2012
EEOC Seeks Input on Draft Strategic Plan
The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Enforcement Plan (SEP). Comments must be submitted by 5:00 pm ET on September 18, 2012 at firstname.lastname@example.org or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. The Commission plans to vote on the draft plan at the end of this fiscal year.
. . .
For general inquiries about the plan, please email email@example.com or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or firstname.lastname@example.org. If you are seeking EEOC information, please call (202) 663-4900 or email@example.com. Further information about the EEOC is available on its web site at www.eeoc.gov.
And I got word of this from Commissioner Feldblum's twitter feed. If you don't follow her, you should: @chaifeldblum.
Playing the Race Card
Apparently, shuffling is a big deal in casinos since dealers are not infrequently discharged for shuffle-related misconduct. One of those was a white plaintiff who sued MGM Grand for race discrimination, among other things, in Ondricko v. MGM Grand Detroit, LLC.
Lest you not be a habitué of casinos, correct shuffling is not as subjective as an amateur might think since dealers use an “automatic shuffle device” and different color cards for each shuffle to ensure an adequate mix. In the incident in question, plaintiff was Floor Supervisor in the Black Jack pit and detected a bad shuffle by a dealer (albeit apparently not quickly enough since the unshuffled cards had been put back in play for 90 seconds before the matter was resolved).
Prior to plaintiff’s discharge, there were six other incidents of shuffle-related misconduct, two of the most recent of which involved black dealers – a black male who was disciplined and a black female, Kim Boyd, who was fired and who had retained attorneys. In the context of discussing plaintiff’s termination, one of the casino’s decisionmakers said “do you think I wanted to fire Kim, I didn’t want to fire Kim, how could I keep the white girl.”
The Sixth Circuit found that this statement sufficed to create a jury question as to whether plaintiff’s race was a motivating factor in the decision to terminate her. Now, there was other evidence (although not as much as one might think), including issues about whether the black male’s misconduct was as bad as plaintiff’s, but the obvious question was whether, taking the statement literally, it could be interpreted to reflect more than a commitment to treat all races equally. Literally, that’s certainly one meaning.
Of course, the statement was made in the context of a potential discrimination suit, which might mean that the manager was more concerned about potential liability than compliance with the law per se, but it’s not clear why that should make any difference if the statement merely reflected a commitment to equal treatment.
But maybe plaintiff’s misconduct was less serious than Kim’s, and the statement indicated a felt necessity to avoid giving Kim any ammunition in her suit. Plaintiff in fact had a much better disciplinary record than Kim, which might suggest that she could have been given lesser discipline without violating the disparate treatment model, and perhaps allow the inference that the action was taken as insurance against being second-guessed on this in court, not because of a balanced assessment of whether the misconduct warranted discharge. This may be what the court meant when it wrote: “in light of the fact that Boyd had a much worse disciplinary record than Ondricko, it is certainly reasonable to conclude from O'Connor's statement that MGM was motivated by a desire to be racially balanced in its terminations for misconduct related to shuffling.”
Interestingly, even aside from the “motivating factor” analysis, there might have been a basis for going to the jury on plaintiff’s claim. There were apparently six potential comparators and blacks seemed to do better than whites – three blacks were disciplined but not discharged, while one was discharged; counting plaintiff, two whites were discharged and one disciplined. Of course, the conduct of the various workers wasn’t identical, but perhaps (as the court recognized) a jury could find that some of the disciplined workers conduct was in fact worse than that of plaintiff.
I’m usually a fan of letting cases go to juries to sort out, so I’m not critiquing the result. But I would have liked a more robust discussion of what intent was permissible and what impermissible in this situation, if only to guide the jury. This reminds me a bit of Johnson v. Santa Clara County where I was never sure whether the plaintiff was preferred because of her gender or whether, given the anti-woman bias displayed previously by lower-level decisionmakers, the employer was just leveling the playing field.
By the way, Ondriko is reminiscent of another one, in which a white football coach could go to the jury on motivating factor liability because of statements by school board members to the effect that "You got the black, now you are going to get the white" and "what is fair for the goose is fair for the gander." Wilkerson v. Columbus Separate Sch. Dist., 985 F.2d 815, 818 (5th Cir. 1993).
LEL Practice Is Hot!
Companies’ demand for legal services is falling in nearly all areas of the law except labor and employment — the lone area where the fallout of the recession appears to be helping rather than hurting large law firms.
While demand for corporate-, real estate- and bankruptcy-related work all dropped 2 to 3 percent, labor and employment work rose nearly 5 percent during the second quarter of 2012 compared with the second quarter of 2011, according to a survey of the nation’s 135 largest law firms by the Hildebrandt Institute’s Peer Monitor Index, a unit of Thomson Reuters. Demand for legal services in the Washington market dropped 2 percent, compared to 0.2 percent nationally.
Although labor and employment work represents a relatively small chunk of the legal market — 8 percent, compared to litigation (33 percent) and corporate (23 percent) — it is the only practice area that has consistently posted growing demand for the past 18 months.
September 4, 2012
Agenda Set for Seventh Annual Colloquium on Labor and Employment Law in Chicago
The conference organizers of the 7th Annual Colloquium on Labor and Employment Law have put out the agenda for the meeting which can be found here. The Colloquium will be jointly held by Northwestern Law School and Loyola-Chicago Law School on September 14-15.
Additionally, the conference organizers have provided some more details about the event:
The first day of the colloquium, Friday, September 14, will be held at Loyola University Chicago School of Law, located at 25 East Pearson Street. The registration table will be located outside of the Power Rogers & Smith Ceremonial Courtroom, room 1040. Breakfast and check-in will begin at 8:00am, with welcome remarks beginning at 9:00am in the Ceremonial Courtroom. After welcoming remarks, we will break into sessions; each will run for one hour and thirty minutes.
The second day of the colloquium, Saturday, September 15, will be held at Northwestern University School of Law, located at 375 East Chicago Avenue, a 10 minute walk southeast of Loyola Law. Breakfast will be provided at 8:00am, and sessions will begin at 9:00am.
Lastly, a reception and dinner will follow our session at Loyola Law, with more details forthcoming.
Sounds like it will be a wonderful event. For those of you attending, look forward to seeing you there!
Nevin Adams (EBRI) has just posted on SSRN an article with some fascinating practical findings. The article is 'After' Math: The Impact and Influence of Incentives on Benefit Policy; here's the abstract:
[T]he next Congress will, of necessity, address issues . . . proposals to modify or reduce existing tax preferences for health and retirement benefits. In that context, EBRI’s 70th policy forum focused on a range of topics, from tax policy and design incentives, to international trends and current drawdown rates, and how they might influence, and be impacted by, future events. This paper recaps the presentations and panel discussions at that event. Among the key points made at the policy forum:
- As important as retirement and health benefits are to Americans’ short- and long-term economic security, the sheer size of their tax preferences makes them vulnerable in the battles over deficit reduction and tax reform. Private-sector health benefits alone rank as the largest single “tax expenditure” in the federal budget.
- Retirement benefits are a tax deferral rather than an exclusion from income -- meaning the federal government will eventually recoup the forgone revenue. This distinguishes retirement plan deferrals from other tax exclusions.
- Because the tax expenditure on 401(k)-type plans is a deferral, rather than an exclusion, reducing the tax expenditure in the current period also reduces the positive stream of revenue in the future.
- The biggest difference between tax-expenditure estimates and revenue estimates for scoring tax reform is that the latter incorporates taxpayer behavior; tax expenditure estimates do not.
- Ten percent or fewer of those ages 55-60 are making withdrawals from their IRA, compared with 80 percent of those 71 and older.
- On a historical basis, depending on the period measured, pre-retiree balances in defined contribution retirement plans double about every eight to nine years.
- Employer match levels seemed to have a bigger impact on older workers, but automatic enrollment seems much more significant in terms of getting younger employees to participate in retirement plans.
- Common challenges for underfunded retirement systems worldwide include the need to increase the state pension age and/or “normal” retirement age for full benefits; to promote higher labor-force participation at older ages; to encourage or require higher levels of private saving; to increase retirement coverage of employees and/or the self-employed; and to reduce savings “leakage” prior to retirement.
A Secunda 2-Fer
Congratulations to Paul Secunda (Marquette) on two fronts.
First, he is quoted extensively in this Labor Day story from Milwaukee public radio: Analyst: Labor Backers Have Reasons for Optimism.
Second, he just posted on SSRN his article (forthcoming 3 Am. U. LEL Forum) Cultural Cognition Insights into Judicial Decisionmaking in Employee Benefits Cases: Lessons from Conkright v. Frommert. Here's the abstract:
Decisionmaking hubris with cognitive origins is present today in many labor and employment law cases in the United States. In two previous law review articles, I explored whether anthropological and psychological explanations of judicial decisionmaking could provide meaningful insights into how U.S. Supreme Court Justices decided some of the more controversial labor and employment law decisions.
Indeed, motivated cognition of the cultural variety, or “cultural cognition,” did robustly explain how Justices’ values in two different labor and employment law cases led to different perceptions of legally-consequential facts in those cases. Culturally-motivated cognition is “the ubiquitous tendency of people to form perceptions, and to process factual information generally, in a manner congenial to their values and desires.” The resulting opinions by the Justices in these cases suffered from “cognitive illiberalism,” which too readily discounted the views of dissenters in favor of the majority’s views of the case. Thus, in these same works, I considered potential social science and legal debiasing techniques for ridding these decisions of delegitimizing bias, while simultaneously making them more acceptable to a larger segment of society.
This article proposes to investigate how these opinion-writing and institutional debiasing strategies could work in practice in the particularly arcane and maddeningly complex area of employee benefits law under the Employee Retirement Income Security Act of 1974 (ERISA). The hope is that the professionalization of the judicial corps through the establishment of ERISA courts based on the bankruptcy court model might promote opinion-writing debiasing techniques that reduce the amount of cognitive illiberalism in employee benefits law opinions. Although no system of judicial decisionmaking will be completely free of the effects of cultural cognition, such debiasing strategies hold out the promise that employee benefit decisions will be more likely based on widely accepted perceptions of fact and evaluation of legal arguments, rather than based on the subconscious cultural biases of the sitting judge.