Wednesday, June 3, 2015

New ImageThose who have ever sat in a traffic jam or spent hours in the emergency room might take  note of the Third Circuit’s recent decision in Bonkowski v. Oberg Indus., holding the time an individual is officially admitted to a hospital can make or break her FMLA claim. The question the court answered was what constitutes an “overnight stay” at a hospital, which would determine whether Bonkowski could bring an FMLA suit against his employer for his termination for trying to deal with his medical issues.

The outcome was a calendar day plus rule: an overnight stay is “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge. Bonkowski v. Oberg Indus., Inc., No. 14-1239, at *19 (3d Cir. May 22, 2015) (2-1) 

A little background is instructive. The definition of “overnight stay” is the final link in a chain of statutory interpretation to determine whether an employee has a serious health condition that qualifies for FMLA protection. The statute itself defines a serious health condition as one “that involves inpatient care…or continuing treatment by a health care provider.” 29 USCS § 2611. But the DOL regulations further define “inpatient” as involving “an overnight stay in a hospital, hospice, or residential medical care facility.” 29 CFR 825.114. The question of what constitutes an overnight stay is therefore often crucial to whether an employee has a serious health condition under the FMLA.

The Third Circuit’s ruling indicates that a matter of minutes can negate an employee’s claim. Bonkowski was an employee of Oberg, the defendant employer, prior to being admitted to Butler Memorial Hospital. On November 14, 2011 he left work after experiencing chest pains and was admitted to the hospital a few minutes after 12:00 midnight. The following day, Oberg terminated Bonkowski for walking off the job. Though his time in the hospital as an inpatient spanned approximately fourteen hours, most of them in what would have been darkness at that place and time of year, the Third Circuit dismissed his FMLA suit against Oberg because he did not stay from one calendar day to the next.  

A purely temporal standard does not seem particularly apt considering that Bonkowski would probably have won if he were admitted at 11:59pm – fourteen hours (in a hospital at least!) is a substantial period in anybody’s view. The announced standard frustrates the remedial purpose of the FMLA by failing to account for the ways admission might be delayed that are irrelevant to the severity of the patient’s medical condition. Bonkowski, as Judge Fuentes argued in dissent, because admission could be delayed by traffic, the particular day of the week, the overall amount of patients, understaffing, geographic region, etc. It also has the absurd result of providing coverage for an employee admitted at 11:00pm and discharged at 1:00am – depending on what “substantial” means – while denying coverage to individuals like Bonkowski.

So what led to this conclusion? Surprisingly enough, the trial court had adopted an even more draconian “sunset to sunrise” approach, which would be a surprise about the meaning of “overnight’ to anyone whose kids had a sleepover. The Third Circuit reasoned that such a rule would yield erratic results because sunset and sunrise are seasonal and vary according to geographic location.  But it also criticized Bonkowski’s alternative “totality of the circumstances” test as being litigation-fomenting because of its unpredictable nature. This is likely accurate, but the “totality of the circumstances” has merit nevertheless since courts could consider all relevant factors of an employee’s hospital stay such as length of time, admittance to a room, the extent of testing, and whether the employee spent at least a portion of traditional night hours in the hospital. The totality of circumstances approach appears an improvement over the calendar day rule, but its propensity for increased litigation and inconsistent outcomes is problematic. 

Perhaps the best definition is one that can be grasped by a reasonable employee, and, from that perspective, the Third Circuit’s ruling has the same propensity for confusion as the “totality of the circumstances.” While “calendar day” is clear enough, the Third Circuit declined to expand on what would constitute a “substantial period of time” between one calendar day and the next, suggesting (but not committing to) a minimum of 8 hours. Id., at *47. At this point, none of the proposed methods seem to balance equity with a definitive standard.

The most puzzling aspect of this debate is that Bonkowski was admitted as inpatient, yet the hospital’s designation was not enough to move the court. The District Court deemed this fact unpersuasive because, even though the hospital’s designation meant Bonkowski’s condition required an overnight stay, that did not mean he actually stayed overnight. Bonkowski v. Oberg Indus., 992 F. Supp. 2d 501, 509 n.9 (W.D. Pa. 2014). In any event, the courts seem to have prioritized the DOL’s requirements over the statute's language by implying that an employee can be medically but not legally inpatient. That distinction far exceeds the ability of an ordinary, reasonable employee to understand, especially one who is likely to be in pain if not crisis at the time.

Maybe the problem is an overlooked Chevron issue. The District Court rejected the hospital designation because “inpatient care is defined in the regulations as an overnight stay, meaning a plaintiff must stay overnight to qualify as receiving inpatient care.”  Yet the statute speaks of “inpatient” and it’s the regulations that add the “overnight” criterion. Arguably, when a hospital decides that a patient requires inpatient care, that should suffice to establish the severity of her condition, even if she was admitted a few minutes after midnight.

And then there’s the emergency room question. By speaking of “inpatient” care, the FMLA makes clear that a trip to the ER doesn’t suffice. But suppose a patient spends three or four hours in the ER and is then admitted inpatient. Does it follow that the time before formal admission is irrelevant to the question of coverage, or even to the question of what counts as overnight?

The bottom line is that employees should be able to discern whether or not they have FMLA coverage. For now, we’ll have to wait and see how the calendar day rule plays out.

 CAS

Thanks to my research assistant, Samira Paydar, for her help on this. 

June 3, 2015 in Worklife Issues | Permalink | Comments (0)

Monday, June 1, 2015

Eisenstadt on Causation in Criminal/Employment Cases

Temple

Leora F. Eisenstadt (Temple, Fox School of Business), has just posted on SSRN her interesting article, "Causation in Context", which critiques the Supreme Court's application of similar causation standards to employment discrimination and criminal law cases.  The abstract is below:

"Causation in Context examines and critiques the Supreme Court’s January 2014 decision in Burrage v. United States and the false equivalency drawn between factual causation standards in criminal law and employment discrimination law. In nearly all of its opinions on factual causation, the Court has looked to the “ordinary meaning” of statutory language, cautioning, in some form or another, that “text may not be divorced from its context.” Nonetheless, the Court continues to do just that, applying linguistic meaning across statutes without consideration of its context, the type of statute in which the language is found, the policy goals at issue in its creation, and the overall functioning of causation in the relevant area of law. That was certainly the case in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the Court’s recent factual causation employment cases. In Burrage, however, the Court takes this acontextual approach one step further by drawing an equivalency between criminal law and employment discrimination that is not only illogical but also potentially detrimental to future employment discrimination jurisprudence.

This article draws on the existing scholarly critique of “but-for” causation in disparate treatment cases and argues that the Burrage Court’s false equivalency between criminal law and employment discrimination law is as damaging as the Court’s decisions in Gross and NassarCausation in Context examines the history of “but-for” causation in employment cases, explores the four major problems with the Burrage approach, and details the ways in which it is likely to negatively impact discrimination doctrine into the future."

The article is an interesting read, and I definitely recommend it to anyone looking at causation issues in the employment discrimination area.

-- Joe Seiner

June 1, 2015 | Permalink | Comments (1)

Decision in EEOC v. Abercrombie

Supreme CourtThe Supreme Court issued its decision in EEOC v. Abercrombie today.  As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy.  The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation).  The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part.  From the syllabus:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. 

The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was.  Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge).  That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations.  For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation.  For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.

Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position.  Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices.  What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases.  In other words, Elauf still has work to do to win this one.

-JH

June 1, 2015 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Wednesday, May 27, 2015

Problems with the New Uber Economy

There is a fascinating article over at the Washington Post on some of the issues that are arising with non-traditional jobs such as those employed by Uber, AirBnb, Taskrabbit and others.  While these jobs can provide workers with unparalleled flexibility, they are also creating challenges for some of the employees to make a livable wage.  From a survey detailed in the article:

"These workers' biggest problem is making enough money. That was the most common reason for these people to drop the job they had, with 42.9 percent saying it didn't generate enough income. And part of that has to do with the fact that they just couldn't get enough work, with 49.2 percent of respondents saying lack of hours was their biggest 'pain point.'"

The article also addresses the possibility of some governmental intervention on the issue.  It is an interesting read, and an important reminder that the traditional workplace is changing with modern technology and other advances.

-- Joe Seiner

May 27, 2015 | Permalink | Comments (0)

Tuesday, May 26, 2015

EEOC Oversight Hearings

EEOC

image from eeoc.gov

The Senate HELP Committee recently conducted oversight hearings on the EEOC's enforcement process (May 19, 2015).  The hearings are now available online.  The focus of these hearings is primarily on the EEOC's enforcement and litigation programs.  Chair Jenny Yang testified through both a written and oral statement (available here), as well as General Counsel David Lopez (available here).  The hearings are interesting and provide a helpful perspective on the EEOC's approach to litigation.  While these hearings took place last week, the EEOC's website is a great source of information for this type of testimony before Congress, and includes older hearings on pay equity  as well as issues related to age discrimination.

The hearings are definitely worth taking a look at, particularly if you are working on any scholarship related to these issues.

-- Joe Seiner

May 26, 2015 | Permalink | Comments (0)

Novel 4th Circuit Case Applies Nassar

SplitJon Harkavy (Patterson Harkavy) sends us word of  Foster v. UMES. Here's Jon's description:

[Foster v. UMES] is a Fourth Circuit case from late last week that deepens a circuit split about application on summary judgment of UT Southwestern v. Nassar to a Title VII retaliation plaintiff who is proceeding on a McDonnell-Douglas approach.  This is a case of first impression in the Fourth Circuit with a tightly reasoned opinion that contains a few other gems.  It is definitely a cert-worthy case that your readers will want to see.

rb

May 26, 2015 in Employment Discrimination | Permalink | Comments (2)

Yearbook of Comparative Labour Law Scholarship 2014

Steve Willborn asked me to post. CAS

Just published: Yearbook of Comparative Labour Law Scholarship 2014. This is a collection of important articles that were published previously in one of the 25 journals of the International Association of Labour Law Journals.

 A principal goal of this volume is to encourage us to read outside our normal time zones and our normal frames of mind. I think you’d find the articles to be different than the normal stuff you read, interesting, and provocative. For example, Jeremias Prassl from Oxford writes about a UK law that permits an employee to give up statutory rights (including unfair dismissal rights) in return for company stock. Very interesting. Brian Langille and Josh Mandryk from the University of Toronto consider right-to-work proposals in Canada that go well beyond those in the U.S. They analyze them in a different way than we do in this country and, perhaps, in a particularly Canadian way. Harry Arthurs wonders if “labor law” might be healthier today if it had been grouped within a larger legal category covering the “law of economic subordination” along with laws protecting tenants, consumers, and small investors. And maybe those other areas would be heathier within the broader group, too. And these are only a few of the articles in the volume.

 Although I think you’d find the volume to be interesting, I also write for selfish reasons. Publishing this volume was risky and expensive for the International Association of Labour Law Journals. (Until June, I’m the President of the group.) The Association would like to do it every year, but will be able to do so only if enough volume are sold. So please consider purchasing a volume for yourself, or asking your library to purchase a copy … or both!

 You can read more about the volume here or order it here.

 Steve Willborn

President

International Association of Labour Law Journals

May 26, 2015 | Permalink | Comments (0)

LawAsia Employment Conference 2015

LawasiaOn the heels of Jeff's announcement of international labor conferences, Bernard Banks (Keily Thompson, New Zealand) writes to tell us of the LawAsia Employment Conference that will be held in Hanoi on 14 -15 August 2015. Here are the details:

The theme of the Hanoi conference  is: Free Trade Agreements and Trans National Employment –Legal Implications, and following the formal opening and keynote address there will be seven business sessions provisionally entitled: employment impacts of  FTAs –a regional overview;  immigration issues in trans  national employment;  minimum terms and conditions –employment obligations in host countries; liability for workplace injuries to trans national employees –issues and case studies;  cross border taxation issues for employers and employees; liability for actions  in host countries – employee obligations and employer liability;  and a concluding panel discussion and forum including an international round up of FTA employment  issues and contributions from delegates. We are in close liaison with the Vietnam Bar Federation which has  a co-hosting role.

rb

May 26, 2015 in Conferences & Colloquia, International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Friday, May 22, 2015

International Labor Law Conferences

GLobeThere are two international labor and employment law conferences coming up in the next month or so.  First up is the second Labor Law Research Network conference in Amsterdam, from June 25-27, 2015.  You can see the program here.

The International Society for Labour and Social Security Law is also holding its second conference, in Venice from June 30-July 9, 2015.  You can see the program here.

-JH

 

May 22, 2015 in Conferences & Colloquia | Permalink | Comments (0)

The Cost of Being Good at Your Job?

Worker

While I do not suffer personally from this problem, many of us out there are over-achievers that excel at their particular job.  A recent study from Duke's Fuqua School of Business looked at these individuals, and concluded that there are dangers inherent with this type of achievement.  An interesting article at Yahoo.com summarized some of the results of the study:

"High-self-control people, the researchers found, end up burdened by their own competence.  For one thing, people will expect more of you — whether or not that's actually a valid expectation. . . . All that leads to a problem: High-self-control people feel more burdened by their work relationships than their less-disciplined peers. They sacrifice more for the coworkers, the researchers found, even when those sacrifices come at the expense of their own goals."

These results do not seem surprising, and are consistent with the observations that many of us have had in various workplaces.  The study is definitely worth taking a look at, as it is interesting to see this workplace dynamic being examined.

-- Joe Seiner

May 22, 2015 | Permalink | Comments (0)

Thursday, May 21, 2015

The 2015 Marco Biagi Award

The winner of the 2015 Marco Biagi Award is Uladzislau Belavusau (Vrije Universiteit Amsterdam, the Netherlands) for a paper entitled A Penalty Card for Homophobia from EU Labor Law: Comment on Asociaţia ACCEPT (C-81/12). In the paper, the author provides a detailed analysis of Asociaţia ACCEPT, an important case from the Court of Justice of the European Union on sexual orientation discrimination. The Court held (1) that an employer could be found liable for the discriminatory statement of a person who is publicly perceived as playing a leading role for the employer, even though the person does not have the legal capacity to bind the employer and (2) that national rules prohibiting such discrimination must be effective, proportionate, and dissuasive. Professor Belavusau evaluates the case as an example of cause lawyering that could be used as a model of legal mobilization for LGBT advocates and for other social movements.

 The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.

This year’s winner was chosen by an academic jury composed of Frank Hendrickx (Belgium), Alan Neal (UK), and György Kiss (Hungary).

Prior winners of the Marco Biagi Award were:

2014    Lilach Lurie (Bar-Ilan University, Israel), Do Unions Promote Gender Equality?

 Specially Noted  ̶   Isabelle Martin (University of Montreal, Canada), Corporate Social Rsponsibility as Work Law? A Critical Assessment in the Light of the Principle of Human Dignity

 2013    Aline Van Bever (University of Leuven, Belgium), The Fiduciary Nature of the Employment Relationship

 2012    Diego Marcelo Ledesma Iturbide (Buenos Aires University, Argentina), Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica

 Specially Noted  ̶  Apoorva Sharma (National Law University, India), Towards an Effective Definition of Forced Labor

2011    Beryl Ter Haar (Universiteit Leiden, the Netherlands), Attila Kun (Károli Gáspár University, Hungary) & Manuel Antonio Garcia-Muñoz Alhambra (University of Castilla-La Mancha, Spain), Soft On The Inside; Hard For the Outside.An Analysis of the Legal Nature of New Forms of International Labour Law  

Specially Noted  ̶  Mimi Zou (Oxford University, Great Britain), Labour Relations With “Chinese  Characteristics”? Chinese Labour  Law at an Historic Crossroad 

2010    Virginie Yanpelda, (Université de Douala, Cameroun), Travail décent et diversité des rapports de travail

 Specially Noted  ̶  Marco Peruzzi (University of Verona, Italy), Autonomy in the European social dialogue.

2009    Orsola Razzolini (Bocconi University, Italy), The Need to Go Beyond the Contract:  “Economic” and “Bureaucratic” Dependence in Personal Work Relations

 CAS

 

 

 

May 21, 2015 in Beltway Developments, Conferences & Colloquia | Permalink | Comments (0)

Wednesday, May 20, 2015

AALS Call for Papers - Local Laboratories of Workplace Regulation

The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2016 Annual Meeting in New York, NY.  The section program is entitled:  Local Laboratories of Workplace Regulation

This program will focus on local governments as sources of labor and employment regulation.  In recent years, local governments across the United States have enacted labor protections, including mandatory paid leave, a higher minimum wage, and wage theft protections.  In response, several state legislatures have passed laws designed to preempt such local regulation.  May a local government, “if its citizens choose, serve as a laboratory” to try experiments in workplace regulation “without risk to the rest of the country?”  For example, local “right-to-work” laws have been adopted in a dozen Kentucky counties, with similar efforts underway in Illinois.  Are these local laws permitted by the National Labor Relations Act?  Are they good policy in any event? This program will cover these and other issues raised by the rise of local workplace regulation.

A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions.  We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.

The Labor Relations and Employment Law Section program will take place on Friday, January 8, 2016 from 10:30am to 12:15pm.  This program is co-sponsored by the Section on State and Local Government.

Please submit an abstract of no more than 400 words and a resume to Section Chair Jason Bent at jbent@law.stetson.edu, by August 15, 2015.

-jb

May 20, 2015 | Permalink | Comments (0)

Tuesday, May 19, 2015

Critical New Scholarship

ExclamI haven't done a great job recently of keeping up with important scholarship in our field, but three articles posted over the last several weeks have particularly caught my attention:

  • Catherine Fisk (U.C.-Irvine) and Jessica Rutter (NLRB Honors Attorney), Labor Protest Under the New First Amendment, 36 Berkeley JLEL (2015). Catherine's scholarship over the last several years has focused on exposing the Supreme Court's inconsistent treatment of labor law under evolving constitutional law doctrine -- and how such inconsistency almost always disadvantages workers. This article is no different. Here, she argues that the Court's treatment of the NLRA's prohibition of 8(b)(7) picketing is unconstitutional speaker-based and content-based discrimination.
  • Michelle Travis (San Francisco), Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act, __ Mich. St. L. Rev. ___ (2015). The ADAAA removed the Supreme Court's extraordinarily restrictive definition of "disability", which for years made the ADA a toothless disability-rights statute. Now employers and courts are attempting to use the statute's "otherwise qualified" and "essential job functions" provisions to again constrain the ADA. Michelle demonstrates that employers and courts are using these provisions to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs. This effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.
  • Edward A. Zelinsky (Cardozo), Retirement in the Land of Lincoln: The Illinois Secure Choice Savings Program Act, __ U. Ill. L. Rev. ___ (2015). Illinois has now become the first state to legislatively enact a state-mandated, state-operated retirement system for private employers. It will not be an ERISA-regulated employee benefit plan but, rather, will be an IRA payroll deposit arrangement. Is this the next wave?

rb

May 19, 2015 in Scholarship | Permalink | Comments (0)

Thursday, May 14, 2015

Reinstatement 500 Miles Away?

Arkan

There is a great article in the Washington Post Blog which discusses a Whistleblowing plaintiff's attempts to achieve adequate recovery.  The plaintiff had gone to federal authorities with allegations of fraud, and was subsequently terminated by Bayer.  The plaintiff brought suit, and was awarded $1.2 million in damages as well as reinstatement.  Bayer decided to comply with the judgment by making the following reinstatement offer:

"The drug maker recently offered him a position that was located in Knoxville, Tn., which is more than 500 miles from his home in Little Rock, Ark., where Townsend spent six years as a Bayer rep, according to court documents."

The district court (U.S. District Court Judge James Moody Jr.) was not amused by the company's reinstatement efforts, which it determined were “not a good faith effort” and it further found that the new job was not a "substantially similar or comparable position”. 

Reinstatement does not arise that frequently in employment discrimination cases, where front pay is often favored, despite the common recitation that reinstatement is the "preferred remedy."  It is interesting to see how one employer tried to (questionably) navigate complying with just such a reinstatement order.

-- Joe Seiner

May 14, 2015 | Permalink | Comments (0)

Tuesday, May 12, 2015

Fourth Circuit's Application of Wal-Mart

The U.S. Court of Appeals for the Fourth Circuit issued a fascinating opinion yesterday in Brown v. Nucor Corporation, which found error in a district court's decision not to certify a Title VII class following Wal-Mart.  The case alleged “endemic” discrimination on the basis of race by steel workers employed at a South Carolina facility.  The discrimination allegedly involved improper promotion practices and harassment under Title VII and Section 1981. From the decision:

"We . . . confront the question of whether the workers’ have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart’s reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers’ class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment." 

This case presents a wonderful example of the difficulty in applying the commonality standard created by the Supreme Court in Wal-Mart, which I have explored here.  The case includes an extensive ninety page dissent (154 pages here total), so if you are looking for some light summer reading, this presents just such an opportunity.  The case exemplifies the differing views on this issue.

-- Joe Seiner

May 12, 2015 | Permalink | Comments (0)

Saturday, May 9, 2015

OSHA: Inadequate Penalties, Poor Enforcement

Danger

A recent article over at CNN/Fortune highlights a problem that many of us have been talking about for years -- the lack of enforcement and any meaningful penalties for workplace safety violations under OSHA.  The article focuses on the problems of criminal enforcement, noting that there have been only a handful of convictions since the statute was debated and passed in the 1970s -- even in the face of worker fatalities.  And, even where criminal prosecutions are successful, the maximum penalties are only misdemeanors which carry minimal jail terms.  Similarly, the civil penalties involved in these cases are far too low.  As the article notes, many states have stepped in to increase workplace safety penalties on their own, which was highlighted in last week's high-profile case out of California:

"Los Angeles County prosecutors charged two Bumble Bee Foods workers with willful violations of safety regulations—which resulted in three felony counts each—in the gruesome 2012 death of a Bumble Bee worker who was trapped inside an oven as it sterilized tuna cans. The workers could serve up to three years in state prison and be forced to pay fines of $250,000 each. The company faces a maximum fine of $1.5 million."

It will be interesting to see if these types of high-profile decisions result in any proposed amendments to federal law, though OSHA has remained largely unchanged since its inception.

- Joe Seiner

May 9, 2015 | Permalink | Comments (0)

Wednesday, May 6, 2015

EEOC Launches Digital Charge System

EEOC

image from www.eeoc.gov

The EEOC launched today a pilot program that will allow the electronic filing and transmission of documents related to discrimination charges in a number of its offices.  The agency receives about 90,000 charges a year, and the hopes are that this system will help streamline the process.  Those offices that are included in the pilot program (starting today) are Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco.  The EEOC offices located in  Denver, Detroit, Indianapolis and Phoenix plan to initiate the program by the end of the month.  The EEOC's website explains that the new system:

"allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form."

This an important development for EEOC claims.  It will be interesting to follow the success of the program, and whether it leads to a more efficient process.

-- Joe Seiner

May 6, 2015 | Permalink | Comments (0)

Monday, May 4, 2015

O'Brien on Purple Communications

O'BrienChristine Neylon O'Brien (Boston College School of Management) has just posted on SSRN her article (forthcoming 66 Lab. L.J. (2015)) Am I Blue or Seeing Red? The NLRB Sees Purple When Employer Communication Policies Unduly Restrict Section 7 Rights. Here's the abstract:

This paper analyzes the National Labor Relations Board’s recent Purple Communications decision. There, the Obama Board found Purple Communication’s restrictions on employee use of its email system violated the National Labor Relations Act as employees were authorized to use the employer email system for work purposes but prohibited from using the email for concerted activities on nonworking time. The Purple Communications ruling has broad significance for employer email policies in the private sector because Section 7 of the NLRA protects employee rights to engage in concerted activity whether employees are unionized or not. The decision specifically overturned the Bush Board’s 2007 holding in Register Guard that employer property rights took precedence over employee Section 7 rights to communicate on employer email systems. This paper evaluates the parameters and implications of the Board’s recent decision on email, including the concerns raised by the dissenters regarding the application of the Board's rebuttable presumption. Practical solutions are recommended.

rb

 

May 4, 2015 in Labor Law, Scholarship | Permalink | Comments (0)

Thursday, April 30, 2015

Call for Papers: Marco Biagi Foundation

Susan Bisom-Rapp (Thomas Jefferson) sends along the annual call for papers for the 14thInternational Conference in Commemoration of Professor Marco Biagi and the Fifth Young Scholars’ Workshop in Labour Relations.  The theme of the 2016 conference is Well Being At and Through Work, a topic that could not be more timely given the lingering effects of the global economic crisis on working people.  In addition, in connection with the Young Scholars’ Workshop, this year the Foundation is awarding a Marco Biagi Prize, which will allow the author of the best paper to take up a three-month residence at the Foundation and comes with a prize of 3500 euros. 

For more details, see the Conference call for papers, Download Marco Biagi Conference 2016, and the Young Scholars call for papers,  Download Call YSW 2016.

MM

April 30, 2015 in Conferences & Colloquia, Faculty Presentations, International & Comparative L.E.L., Scholarship | Permalink | Comments (0)

Wednesday, April 29, 2015

Harris on Department of Labor Performance

Seth-HarrisSeth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review.  The abstract:

This article tells the story of the successful effort to turn around the Labor Department’s performance during the first five years of the Obama Administration. The Labor Department leadership team, largely chosen for its policy expertise rather than any management experience, used common-sense performance measurement and management to improve workers’ lives and the nation’s economy. The article critiques the two principal laws that purport to structure and guide the executive branch’s performance planning and explains how the Labor Department succeeded in improving its performance despite these laws and Congress’ lack of interest in implementing them or holding agencies accountable for compliance or good performance. The article also offers a reform agenda for improving federal government performance both through congressional action and activist stakeholder engagement.

I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting.  That's right, it's about managerial performance measures and it was really interesting.  Don't believe me?  Read the article.

-JH

 

April 29, 2015 in Conferences & Colloquia, Labor and Employment News, Labor Law | Permalink | Comments (0)