Thursday, April 24, 2014
The scholarship players for Northwestern's football team will be voting Friday whether to unionize. As the NY Times reports, Northwestern has been fighting hard for the players to vote against the union. Many readers will recognize these anti-union tactics as common during a campaign. Indeed, the facts, which could easily be the basis for a challenge to the election if the union loses, looks like something I'd write for a Labor Law exam: for example, the coach engaging in one-one meetings (or "interrogations"?) with players; predictions (or threats?) of negative consequences if there is a union; and giving players new iPads and bowling parties (pre-planned or improper provision of gifts?). No matter the outcome of the vote, which we likely won't know for a while, this will probably drag on for some time. One upside is that the publicity given to this case will provide a good example to explain the issues surrounding the NLRB-election process. Just in time for new election rules from the NLRB!
In addition to issues under the NLRA, I would expect to see claims brought by players under other statutes. The FLSA (hello minimum wage and overtime), Title VII, OSHA, and other statutes all have definitions of "employee" as broad, or broader, than the NLRA. And those statutes will pull in public schools as well. I'd be surprised if we don't see some of these claims soon, especially if the NCAA doesn't make significant changes (e.g., the NCAA just removed restrictions on player meals after Shabazz Napier's "I go to bed starving" comment). This isn't a novel argument either. In the 1970s, an Indiana State football player unsuccessfully sought status as an employee to get workers compensation benefits after becoming a parapalegic because of an injury suffered during practice.
- The lone holdout among major U.S. airlines has now joined the club. Pilots for JetBlue just voted by almost 75% to unionize.
- The case against Apple, Google, and other Silicon Valley employers for their agreement not to recruit each others' employees is proceeding. Some views on the case from the Washington Post.
- The Washington Post editorializes on the Silicon Valley case and other issues involving wage theft.
- An NYU Law trustee's company subpoenas two NYU law students for their actions criticizing the company's labor practices. As an NYU alum, I'm happy to see that the law school is supporting the students, including paying any legal expenses.
- Mitchell Rubinstein at Adjunct Prof Blog reports on a NY Court of Appeal decision to reject a duty of fair representation case against a union for not taking a dismissal case to arbitration. The basis of the holding was a common law rule requiring all union members to ratify a decision before holding the union liable, a matter that Mitchell discusses in a cited article.
- Michael Goldberg submitted an amicus brief to the NLRB for its reconsideration of its arbitration deferral policies.
- An Op-Ed suggesting that the White House should pay its interns. It's an interesting issue. I know the policy reasons for giving government and non-profits employers more leeway with unpaid interns, although I've never been able to reconcile that with the FLSA's coverage of those employers. Although I might be biased because my wife used to be an unpaid White House intern in the 1990s (no, not that one, although they she was there soon after).
Hat Tip: Michael Duff, Patrick Kavanagh, and Lynn Dancy Hirsch
Monday, April 21, 2014
In a bit of a surprise, the UAW announced today that it will drop its challenge against its recent election loss at VW-Chattanooga. The UAW cited the prospect of delay while going through the NLRB challenge process. That's certainly a legitimate concern, but I don't think I'm going on a limb by suggesting the other factors are at play here. As Ken Dau-Schmidt noted in the linked article, by dropping the challenge, the UAW could seek another vote earlier. Moreover, the subject of some of the alleged threats--a new production line--may already be in place soon and will therefore no longer remain as a viable point of pressure.
I will admit that I'm disappointed, if only at the loss of a possible ruling relying heavily on the comments of lawmakers. Some of the government pressure that has come to light, if true, is really quite amazing. Of course, the prospect of such a Board ruling--and the significant backlash that would come with it--was likely an issue in the decision as well.
Hat Tip: Too many to count, so thanks to you all.
Friday, April 11, 2014
Counterbalancing yesterday's news eliminating HR departments is a story about an innovative HR strategy dubbed "Pay to Quit." According to a recent piece in Slate, Amazon is offering up to $5000 to any warehouse worker who quits. Amazon's letter to its shareholders stresses that the idea is to filter out those with little attachment to the company so that only really dedicated workers will remain:
The second program is called Pay to Quit. It was invented by the clever people at Zappos, and the Amazon fulfillment centers have been iterating on it. Pay to Quit is pretty simple. Once a year, we offer to pay our associates to quit. The first year the offer is made, it’s for $2,000. Then it goes up one thousand dollars a year until it reaches $5,000. The headline on the offer is “Please Don’t Take This Offer.” We hope they don’t take the offer; we want them to stay. Why do we make this offer? The goal is to encourage folks to take a moment and think about what they really want. In the long-run, an employee staying somewhere they don’t want to be isn’t healthy for the employee or the company.
Maybe making an offer you can refuse will have that effect. Or maybe those remaining are those without viable alternatives. But who am I to question the wisdom of Amazon?
By the way, this is the second of three "employee empowerment" programs featured in the Amazon letter. The first is Career Choice, "a program where we pre-pay 95% of tuition for our employees to take courses for in-demand fields, such as airplane mechanic or nursing, regardless of whether the skills are relevant to a career at Amazon. The goal is to enable choice." In this case, apparently choice to leave Amazon.
One wonders about the health of employment at a firm when two of the three employee empowerment initiatives are of the don't- let-the-door-hit-you variety. You naturally ask, what's the third? No surprise here -- the Virtual Contact Center, which has "continued to grow with terrific results." Work from home customer service -- it's Amazon's "fastest growing 'site" in the U.S."
H/t to Steve Willborn.
Thursday, April 10, 2014
Thanks to Liz Tippett for alerting me to the WSJ article on firms getting leaner and meaner by eliminating HR. Liz comments that it reminded her of what she would say to grumpy corporate clients – "the only thing worse than calling your employment lawyer is not calling your employment lawyer."
In an era in which "compliance" is increasingly important for more and more employers, it is truly remarkable to discover that a department whose mission includes compliance with complicated labor and employment regulations is being phased out. And, if the article is to be believed, not merely at smaller firms.
I'd say that the article views the trend -- if such it be -- with suspicion. While outsourcing many of the mechanical operations of HR is much easier today with technological advances, it remains true that both managing "human resources" and complying with the law requires a more sophisticated understanding of both than a typical outside firm can provide.
But maybe I shouldn't complain. Savings on the front end with HR departments may generate more lawyers' fees on the back end, which has its advantages for law schools and the legal profession in this market.
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Monday, April 7, 2014
The AP is reporting that President Obama will announce on Tuesday two new executive orders. One will ban federal contractors from maintaining pay secrecy rules. The other will require federal contractors to mantain records on compensation based on race and sex and provide them to the government.
As many readers know (and I swear I told the reporter this), the NLRA already bans pay secrecy rules. An executive order will obviously help as it's enforcement is different and much more likely to prevent these rules earlier. But I think the bigger change is the compensation data rule. Just requiring employers to record that data could have a positive impact if it leads them to better recognize pay disparities and inquire whether they are justified by legitimate reasons. And I'm sure that there are many labor economists, among others, who would love to get their hands on this type of data after a few years.
Hat Tip: Patrick Kavanagh
Thursday, March 27, 2014
The Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post.
If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.
In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.
I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.
Wednesday, March 26, 2014
The Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.
The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog, Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate.
There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.
I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June.
Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Thursday, March 13, 2014
The big news yesterday out of Washington yesterday was the story that President Obama is ordering the Department of Labor to revise the overtime exclusion regulations. We obviosuly don't have the details yet, but one of the main thrusts appears to be an attempt to roll back the Bush-era regulation on primary duty. In particular, the current rules allow excluded duties to be an employee's "primary duty"--thereby possibly precluded overtime payment--even when those duties make up less than half of the employee's work time. In addition, the agency will apparently increase the current $455/week salary minimum for the overtime exclusions. No word yet on what the new amount would be.
It's still early and we'll obviously see a lot of political fighting on this, so stay tuned.
Wednesday, March 12, 2014
Congratulations to blog-emeritus Paul Secunda for being named Vice-Chair of the Department of Labor's ERISA Advisory Council. According to the announcement:
U.S. Secretary of Labor Thomas E. Perez today announced the appointments of five new members to the 2014 Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. He also announced the 2014 chair and vice chair of the council, which are Neal S. Schelberg and Paul M. Secunda respectively.
"The dedicated experts who volunteer to serve on the ERISA Advisory Council are a wonderful resource," said U.S. Secretary of Labor Thomas E. Perez. "I have no doubt the 2014 council will build upon the impressive body of benefits research and analysis begun by their predecessors."
. . . Secunda is a professor at Marquette University Law School in Milwaukee, and he has authored books and articles on employee benefits law. He previously practiced labor law in Philadelphia, and Secunda is a past chair of the section on employee benefits and executive compensation of the Association of American Law Schools.
Nice job, Paul!
Tuesday, March 11, 2014
Sam Estreicher and I have just had our article, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, published in the North Carolina Law Review. People can (and already have) take issue with our argument that the U.S. approach to unjust dismissal may not, in practice, be as far apart from other countries' as many have assumed. We obviously encourage such comments and look forward to further discussion.
However, I wanted to mention what I believe to be an equally important aspect of the article. As you'll notice if you download it, it's immense and very heavily footnoted. Sam & I worked hard to give as accurate a picture of we could of the studied countries' unjust dismissal laws--both on the books and as they function on the ground. For instance, where available, we provide data on average damage awards and convert those awards to current U.S. Dollars. We also explore various aspects of termination, including rules on unjust dimissals, notice, severance payments, economic dismissals, and unemployment benefits. One of the reasons that we wrote this article was that the many years of wishing that someone else would write it didn't seem to be working. So our hope is that it will serve as a useful research tool for others. While I'm at it, I should give another thanks to the research assistants and law review editors who provided invaluable help with this article. Maybe some day the law review students will stop glaring at me for subjecting them to all the foreign cite checking they had to endure.
Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals.
Although other countries’ cause regimes differ significantly from the United States on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data—particularly claimants’ success rates and average remedies—in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by United States standards. This suggests that the United States, with its at-will default and broader remedies, is actually part of a relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the United States employment dismissal system and the dismissal systems of cause regimes.
Friday, March 7, 2014
- The NLRB will hold public meetings on its new election rules proposals. Requests to speak are due March 10 and the meetings are scheduled for April 10 & 11. The transcripts from the previous set of meetings, while containing a lot of the usual suspects, actually had some useful testimony, so it's not just a pro forma procedural hurdle.
- Here we go again. Apropos to the above entry, after the NLRB proposed again its original set of election rules, Republicans in Congress attack. This time a House hearing. The main objection appears to be faster elections (what they call "ambush elections"), although the claim that they could be held in as little as 10 days doesn't look accurate to me.
- I'm late on this one, but the NLRB is relocating. HQ is moving from the 14th & L location that I new so well to a building on the Capitol riverfront. At least they'll be able to catch more Nationals games.
- After the Scott Walker e-mail release, it became known that a state doctor was fired for having modeled thongs in the past. Jason Walta asks whether she might have a claim under the Wisconsin statute that protects the "use or nonuse of lawful products off the employer's
premises during nonworking hours." See the lengths we'll go to try to tease Paul, our emeritus Wisconsinite, back onto the blog?
Hat Tip: Patrick Kavanagh.
Monday, February 24, 2014
Given the amount of attention leading up to the VW-Chattanooga vote, it's no surprise that the aftermath has been heated as well. Following the UAW's narrow loss, the biggest news is the union's filing of eletcion objections with the NLRB. The actual objections petition is well worth a read. I followed the election pretty closely, but was still amazed at some of the statements by Tennessee politicians, especially Sen. Corker who might feel especially charged given his role in bringing VW to Chattanooga while he was mayor. In any event, there's a plausible third-party interference claim here, especially given Corker's repeated statements that he heard from VW itself that it would decide against expanding production at the plant if the union won. It'll be interesting to see if VW takes any position before the Board.
In related news, Steven Greenhouse has a good recap on the events as of last week,primarily from the UAW's viewpoint. Also, Cesar Rosado Marzan (Chicago-Kent) takes the glass-half-full view by stressing the possibility of filing ILO charges and VW bargaining with the UAW as a minority union. Given the outcry leading up to the vote, could you imaging the reaction if VW started dealing with the union after it lost a vote?
Hat Tip: Tom Cochrane
Thursday, February 20, 2014
The Departments of Labor, Treasury, and Health and Human Services have announced the publication of final regulations implementing a 90-day limit on waiting periods for employer provided health coverage.
The final regulations require that no group health plan or group health insurance issuer impose a waiting period longer than 90 days after an employee is otherwise eligible for coverage. The rules do not require coverage be offered to any particular individual or class of individuals, and it doesn't affect non-time-period conditions for eligibility, such as meeting certain sales goals, earning a certain level of commission, or successfully completing an orientation period. Requiring employees to complete a certain number of hours before becoming eligible for coverage is generally allowed as long as the requirement is capped at 1200 hours. The rules also address situations in which it cannot be determined that a new employee will be working full-time.
The departments are issuing a companion proposed rule for comment. That rule would limit the maximum duration of an otherwise permissible orientation period to one month. This proposal will be open for public comment. Comments must be filed by April 25, 2014.
Both the final and proposed rule are scheduled to be published on Monday, February 24, 2014.
Wednesday, February 19, 2014
Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.
The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.
These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there?
Friday, February 14, 2014
The votes are in, and VW-Chattanooga employees have voted 712-626 against representation by the UAW (participation was 89%). As has been frequently noted in the news, this could have been a ground-breaking vote in many ways. One of the most obvious is that it would have represented a breakthrough as the UAW finally gains a foothold in the foreign-owned Southern automaking industry. Moreover, the labor-management relationship was to model itself on a German-style works council.
Although important, I found the "foothold" point to be the less important one. In many ways, this situation is unique to a German company with long ties to one of the more powerful unions in the world (IG Metal). Even if the vote had gone the other way, there was no reason to assume that unionization would've spread to other plants in the South.
More interesting was that the proposed relationship between VW and the UAW looked extremely promising. Many commentators (including yours truly) have argued in favor of more cooperative labor-management relationships and it would've been really interesting to see how it developed. But it was not to be.
Matthew Dimick (Buffalo-Law) and Neel Rao (Buffalo-Economics) have just posted on SSRN their paper, Wage-Setting Institutions and Corporate Governance, which examines how wage-setting institutions influence the concentration of ownership and investor=protector legislation. The abstract:
Looks really interesting, so check it out!
Monday, February 10, 2014
In another sign that the 5-member NLRB is ready for business, the Board has put out two separate calls for briefs on three separate issues: deferral to arbitration awards, faculty status as employees, and jurisdiction over religous universities. All of these are perennial issues that have been hard fought over the years. The announcements (links above) contain more info on filing briefs.
The announcement for the deferral issues states, in part:
The National Labor Relations Board (NLRB) invites interested parties to file briefs . . . to determine whether or not the Board should continue, modify or abandon the Olin/Spielbergstandard for deferral to arbitration awards.
Under the existing standard, the Board defers to an arbitration award when (1) the arbitration proceedings are fair and regular; (2) all parties agree to be bound; and (3) the arbitral decision is not repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). Further, the arbitral forum must have considered the unfair labor practice issue. The Board deems the unfair labor practice issue adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice issue. Olin Corp., 268 NLRB 573 (1984). The burden of proof rests with the party opposing deferral.
The NLRB General Counsel has asked the Board to adopt a different standard. Under his proposal, the party urging deferral would bear the burden of demonstrating that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board would defer unless the award was clearly repugnant to the Act.
The announcement for the regious university jurisdiction and faculty status states, in part:
The National Labor Relations Board is inviting briefs from interested parties on two questions: whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.
The case is Pacific Lutheran University (19-RC-102521). . . . In its invitation, the Board listed three questions to be addressed concerning jurisdiction, including what test the Board should apply under NLRB v. Catholic Bishop, 440 U.S. 490 (1979), to determine whether self-identified “religiously affiliated educational institutions” are exempt from the Board’s jurisdiction, and what factors the Board should consider in determining the appropriate standard for evaluating jurisdiction under that case. The Board listed nine questions that the briefs should address concerning the standard under NLRB v. Yeshiva University, 444 U.S. 672 (1980).
It appears that there is going to be a lot of important things coming from the Board, so it looks to be an interesting year.