February 11, 2012
Bob Belton, 1933-2012
Thanks to Marion Crain (Wash. U.) for alerting us of Bob Belton's Thursday passing. The Vanderbilt website has a nice tribute to him. Below are some of the excerpts. Please feel free to add your own comments to this post to describe how Bob touched your life.
Robert Belton, who retired from a 34-year career as a professor at Vanderbilt Law School in 2009, died Feb. 9 after suffering a stroke. He was 76 years old.
A nationally recognized scholar of labor and employment and civil rights law, Belton joined Vanderbilt’s law faculty in 1975 and became the first African American to be granted tenure at Vanderbilt Law School. He was a popular and beloved teacher and mentor who particularly enjoyed working with students interested in social justice. He played an important role in mentoring minority law students, serving as faculty adviser to the Black Law Students Association and working with other African American faculty on equality issues at Vanderbilt.
A trailblazer in civil rights as an activist, attorney and scholar throughout his career, Belton served from 1965 to 1970 as an assistant counsel for the NAACP Legal Defense and Educational Fund Inc. At the Legal Defense Fund, he headed a national civil rights litigation campaign to enforce what was then a new federal law prohibiting discrimination in employment because of factors such as race and sex.
Belton had a major role in Griggs v. Duke Power Co, the landmark Supreme Court civil rights case the Legal Defense Fund litigated. Other landmark Supreme Court civil rights cases in which he was involved included Albemarle Paper Co. v. Moody, which addressed damages in civil rights cases, and Harris v. Forklift Systems, which addressed sexual harassment.
From 1970 to 1975 Belton practiced law as a partner at Chambers Stein Ferguson & Lanning in Charlotte, N.C., one of the first racially integrated firms in the South. The building owned by the firm was fire-bombed at the height of its involvement in a series of landmark civil rights cases, including Swann v. Charlotte Mecklenburg Board of Education, in which the Supreme Court approved busing as a remedy to enforce the Brown v. Board of Education decision.
DOL Issues Final H-2B Rule
The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division yesterday announced a final rule on the H-2B temporary nonagricultural worker program. The rule, to be published in the Feb. 21 edition of the Federal Register, changes several aspects of the program, which allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available, and the employment of those foreign workers will not adversely affect the wages and working conditions of U.S. workers. The H-2B program is limited by law to a cap of 66,000 visas per year.
The final rule creates a national registry for all H-2B job postings and increases the amount of time during which U.S. workers must be recruited. The rule requires the rehiring of former employees when available, and requires that H-2B program benefits such as transportation costs and wages be extended to U.S. workers performing substantially the same work as H-2B workers.
Though there may be some salutary parts of this rule, overall I think it's misguided. The U.S. has benefitted tremendously over the last 50 years by importing brainpower from all over the world. Restricting immigration of the world's best and brightest is hardly a prescription for long-term economic success.
February 10, 2012
Recently Published Scholarship
- Matthew Dimick, Labor Law, New Governance, and the Ghent System, 90 North Carolina L. Rev. 319 (2012).
- James Ruffin Lawrence, III, "Let Us Now Try Liberty": Freeing the Private Sector to Tackle North Carolina's Tobacco Addiction by Reinstating Employment Freedom of Contract, 90 North Carolina L. Rev. 510 (2012).
- Nicole Buonocore Porter, Embracing Caregiving and Respecting Choice: An Essay on the Debate Over Changing Gender Norms, 41 Southwestern L. Rev. 1 (2011).
- Andrew Powell & Richard Bales, Ethical Problems in Class Arbitration, 2011 J. Disp. Resol. 309.
February 9, 2012
Lactation is Not a Condition Related to Pregnancy Says S.D. Tex.
Earlier this month, the EEOC lost a sex discrimination case on summary judgment, EEOC v. Houston Funding. The employee in that case alleged that she was fired for asking to be able to pump breastmilk upon her return to work after giving birth. The district court judge held that even though discrimination on the basis of pregnancy, childbirth, or related medical conditions is a violation of Title VII, that once the employee gave birth, she had no more pregnancy-related conditions and that therefore firing someone on the basis of lactation or pumping breastmilk could not be sex discrimination, citing these other district court decisions in support: Puente v. Ridge, No. M-04.267, 2005 U.S. Dist. LEXIS 46624, at *1I-12 (S.D. Tex. July 6, 2005); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *30 (D. Or. Apr. 9, 1999; Wallace v. Pyro Mining Co., 789 F . Supp. 867, 869 (W.D. Ky. 1990).
The judge did not address whether lactation was a condition related to childbirth, the noun that comes between pregnancy and the phrase "other medical conditions," which seems rather problematic for the judge's reasoning. I could see the argument that lactation is not necessarily a "medical" condition, because that suggests dysfunction rather than a natural consequence of pregnancy and childbirth, but that was not what the judge appeared to rely on. Joan Willams (U.C. Hastings) has a great counterargument to that in this news story summarizing the woman's claim. She links breastfeeding to transferring immunities from mother to child, and refers to the medical complications like mastitis that can arise when mothers cannot breastfeed or express milk.
Interestingly, the facts of the order read very differently from the facts that the employee is alleging (see the EEOC complaint here). While I can't find a copy of the summary judgment documents to be sure, it looks as if the judge has not viewed the facts in the light most favorable to the EEOC. I see an appeal on the horizon here.
OFCCP Extends Comment Period/Promoting Employment of People with Disabilities
The Office of Federal Contracts Compliance Programs has extended the comment period for for its proposed rule to revise regulations implementing Section 503 of the Rehabilitation Act of 1973, which obligates most federal contractors and subcontractors to ensure equal employment opportunity for qualified workers with disabilities.
From the press release:
On Dec. 9, 2011, OFCCP published a notice of proposed rulemaking in 76 Federal Register 77056 with a comment period originally set to end on Feb. 7, 2012. After reviewing requests for an extension, OFCCP has extended the comment period by 14 days until Tuesday, Feb. 21. This action will provide additional time for interested parties to analyze the issues raised in the proposal and to provide their comments. Individuals and organizations who already have submitted comments may use the extension period to revise or add to their original comments.
To learn more about the proposed rule and submit comments, visit http://www.dol.gov/ofccp/503. The rule proposed by OFCCP would strengthen the affirmative action and reporting obligations of federal contractors by requiring them to set a hiring goal of having 7 percent of their employees be qualified workers with disabilities. The proposed changes also detail mandatory actions contractors would have to take in the areas of recruitment, training, record-keeping and dissemination of affirmative action policies ‒ obligations similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations of contractors by providing specific guidance on how to comply with the law.
Parties who filed comments previously may supplement or submit additional comments during the extended comment period. Parties interested in commenting can view the NPRM and submit comments by using the Federal eRulemaking Portal www.regulations.gov and referencing RIN 1250-AA02. This is another great opportunity to have students participate in the rulemaking process.
Hat tip: Patricia Schaeffer, EEOIMPACT LLC
Arizona's Trying to Kill Labor
Labor unions plan to rally in front of the Arizona State Capitol on Thursday afternoon to protest four bills quickly moving through the state Legislature that could make last year's Wisconsin labor laws look modest by comparison.
Three of the four bills restrict the way unions collect dues and the way workers get paid for union activities. The fourth bans collective bargaining between governments and government workers: state and local. Unlike Wisconsin, it affects all government employees, including police and firefighters.
LEL Student Writing Competition
Laura Cooper (U. Minn & Co-Editor, ABA J. LEL) sends us this note about a student writing competition:
Students at American law schools are invited to submit articles on labor and employment law to the 2012 Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers. The possible prizes include $1500 for first place, $1000 for second place, and $500 for third place. The winning article will be published in the ABA Journal of Labor & Employment Law. Manuscripts must not exceed twenty pages, double-spaced, and must be submitted no later than 6:00 p.m. EDT, May 15, 2012. Here are the complete competition rules.
February 8, 2012
Arizona Public Pension Changes Found Unconstitutional Under Contracts Clause
How Not to Plead Diversity Jurisdiction
Judge Easterbrook (7th Circuit) explains the difference between "residence" and "domicile" -- and bench-slaps Morgan Lewis Bockius for making a couple of rookie mistakes -- in Heinan v. Northrup Grumman (Feb. 7, 2012). Though it is an employment/arbitration case, it doesn't break new legal ground on that count.
February 7, 2012
Wage Case Spawns E-Discovery Dispute
Above the Law reports on Pippins v. KPMG (SDNY), in which several former KPMG auditors have sued for nonpayment of overtime. In the course of litigation, the court ordered KPMG to preserve hundreds -- perhaps more than a thousand -- hard drives containing information about the working hours of thousands of employees. KPMG, which apparently has not turned over any hard drives yet, argued that only a sample handful of drives should be preserved. Not so, said Judge Colleen McMahon:
Even assuming that KPMG’s preservation costs are both accurate and wholly attributable to this litigation — which I cannot verify — I cannot possibly balance the costs and benefits of preservations when I’m missing one side of the scale (the benefits).
I gather that KPMG takes the position that the only Audit Associates who are presently ‘parties’ are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense.... Under [relevant precedent], the duty to preserve all relevant information for "key players" is triggered when a party "reasonably anticipates litigation." ... At the present moment, KPMG should "reasonably anticipate" that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.
February 6, 2012
Duff on the NLRB's Preemptive Strike Doctrine
Michael Duff (Wyoming) has just posted on SSRN his article, New Nip in the Bud: Does the Obama Board's Preemptive Strike Doctrine Enhance Tactical Employment Law Strategies?, which will be published in the Employee Rights and Employment Policy Journal. The abstract:
In this essay I revisit the classic debate concerning when worker activity is sufficiently “concerted” to be covered by the National Labor Relations Act, a statute covering certain private sector protected “concerted” activity by workers. When workers are obviously engaged in concerted “labor” activity — classically activity like striking, picketing, or even just complaining about working conditions — they are generally protected against employer reprisal for doing so. Over the last few decades there has been disagreement about the definition and limits of “concert.” My renewed interest in this dormant but not dead subject was piqued by the “Obama Board’s” recent decision in Parexel International, 356 NLRB No. 82 (2011), a case in which an employer fired a worker who had not engaged in concerted activity but whom it suspected (without any basis) would engage in concerted activity. The ALJ hearing the ensuing administrative adjudication rejected the Government’s “nip in the bud” theory of NLRA violation because, quite frankly, there was no precedent supporting it. The NLRB reversed the judge and found a violation, but on grounds I think were infirm. This essay defends the outcome of the decision (which was not appealed to the courts) but on a different rationale than the one proffered by the NLRB.
I reassess Parexel, relying heavily on Professor Charles Morris’s expansive view of the interplay of Sections 7 and 8(a)(1) of the NLRA: The Act protects the right of workers to engage in concerted activity for other mutual aid or protection, which can mean more, depending on the circumstances, than merely protecting workers against reprisals after they have actually engaged in such concerted activity. Even more broadly, I argue — in response to those who would have employment law function as labor law – that the true value of expanding the reach of Section 7’s definition of concerted activity is to increase the likelihood of bringing employment law to labor law, the only realistic home of a collective work law ethic.
Definitely worth a read--and a good emphasis on a case that probably didn't get as much attention as it deserved (including from me).
Election Rule Challenge
The parties challenging the NLRB's new election rules--the U.S. Chamber of Commerce and Coalition for a Democratic Workplace--have just moved for summary judgment. That, by itself, isn't particularly blog worthy, but what caught my eye was their argument that the Board lacked a quorem. The argument is that only two Board members voted to promulgate the rules, which violated New Process. To my mind, this is a ridiculous argument. For one, it directly contradicts the meaning of "quorum." Second, it proves way too much. If you took this argument seriously, every 2-1 Board order would fail because only two Board members voted for it.
Bales Kills More Trees
I've just posted a slew of articles on SSRN. The first five are still in the process of revision, so please feel free to email me with citations to your own work that I can plug into these. Any comments would be much appreciated.
- ERISA Failures and the Erosion of Workers' Rights: The Urgent Need to Protect Private and Public Workers' Pensions and Benefits (with James P. Allen, Jr.), forthcoming Albany L. Rev.
- Concepcion and Preemption Under the Federal Arbitration Act (with Ian D. Mitchell), forthcoming Penn St. Yearbook on Arbitration & Mediation.
- Considering Final Offer Arbitration to Resolve Public Sector Impasses in Times of Concession Bargaining (with Michael Carrell), forthcoming Ohio St. J. Disp. Resol.
- Australia’s Solution to Disability Discrimination Enforcement (with Paul Harpur & Ben French), forthcoming Cornell H.R. Review.
- Australia’s Fair Work Act And the Transformation of Workplace Disability Discrimination Law (with Paul Harpur & Ben French), forthcoming Wisconsin Int'l L. Rev.
- The Positive Impact of the Convention on the Rights of Persons with Disabilities: A Case Study on the South Pacific and Lessons from the U.S. Experience (with Paul Harpur), 37 N. Ky. L. Rev. (2010).
- Education for Americans with Disabilities: Reconciling Idea with the 2008 ADA Amendments (with Kathryn Smith), 37 N. Ky. L. Rev. (2010).
- Ethical Problems in Class Arbitration (with Andrew Powell), forthcoming J. Disp. Resol.
Zelinsky on Romney's IRA
On a personal level, I enjoyed the news reports that Mitt Romney holds assets worth tens of millions of dollars in his individual retirement account (IRA). These reports confirm a central thesis of The Origins of the Ownership Society, namely, the extent to which defined contribution accounts, such as IRAs and 401(k) accounts, have become central features of American life.
I was also gratified as colleagues, friends and neighbors who are often skeptical of what I do for a living (“You actually teach about pensions?”) sought my opinion about Mitt Romney’s IRA. Since we don’t have all of the details, my answers entailed a certain amount of conjecture. For those too sheepish to ask, here are the questions most frequently posed to me and my answers ....
Defining Disability Under the ADAAA
February 5, 2012
Recently Published Scholarship
- Kimberly West-Faulcon, Fairness Feuds: Competing Conceptions of Title VII Discriminatory Testing, 46 Wake Forest L. Rev. 1035 (2011).
- Elizabeth Riordan, Where the Heart Is: Amending the FLSA to Provide Wage and Overtime Pay Protection to Agency-Employed Home Health Aides, 85 St. John's L. Rev. 837 (2011).