Tuesday, November 19, 2013
Theodore Eisenberg (Cornell), who has been studying trends in civil rights and employment litigation for nearly thirty years, has just posted on SSRN his article Four Decades of Federal Civil Rights Litigation. Here's the abstract:
Civil rights cases constitute a substantial fraction of the federal civil docket but that fraction has substantially declined from historic peaks. Trial outcomes, as in other areas of law, constitute a small fraction of case terminations and have changed over time. The number of employment discrimination trials before judges has been in decline for about 30 years, a trend also evident in contract and tort cases. The number of employment trials before juries increased substantially after the enactment of the Civil Rights Act of 1991 but has been in decline since 1997. In constitutional tort cases, the number of judge trials has been declining for about 30 years; the number of jury trials has been reasonably constant over that time period. Civil rights plaintiff win rates at trial have been steady in both judge trials and jury trials for at least a decade. The success of civil rights litigation, as measured by trial win rates and settlement rates, has been quite low compared to contract and tort cases. Median awards in civil rights trials have increased more than the rate of inflation but median trial awards in both constitutional tort cases and employment cases are below the awards in contract cases and tort cases.
Monday, November 18, 2013
In Cosey v Prudential, (4th Cir. Nov. 12, 2013), the Fourth Circuit held that the common plan formulation "proof satisfactory to the administrator" does not unambiguously confer discretion on the administrator and thus subjects the administrator's decisions to de novo judicial review (as opposed to arbitrary and capricious review under the Firestone/Glenn standard).
Like Jon, I find this decision interesting, as it has the potential to cut back on the abuse-of-discretion standard of review for many ERISA plans. However, I suspect that in response to this Court's decision, we are likely to see many plan amendments adding language which more unambiguously states the plan's intention to get the benefit of Firestone discretionary review for its benefit determination decisions.
Joseph E. Slater (University of Toledo College of Law) has posted on SSRN his recent piece in the Hofstra Labor and Employment Law Journal entitled: The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years.
Here is the abstract:
This article, part of a symposium on the history of various areas of labor and employment law, gives an overview of public-sector labor law and labor relations in the past thirty years. The public sector has for decades been central to labor relations in the U.S.; increasingly, it has also acquired a high profile in the political world. Despite great successes in organizing by public-sector unions, public-sector labor law has long been in a state of tumult (including, but not limited to, high-profile laws passed in 2011 gutting the rights of such unions). Although by the 1980s, it seemed as if public-sector collective bargaining was widely (if not universally) accepted, and that it functioned fairly well, the next three decades featured surprising upheavals. Because there is so much variation within the public sector (it is mainly state and local law), there is no single story of the past three decades. This article discusses illustrative events in this period, events which helped shape the broader history of labor relations. It starts with early history of public-sector labor law, then moves to the last three decades. For the 1980s, it discusses two key (and contrasting) events of the early part of the decade: the crushing defeat of the PATCO strike, and the enactment of the Ohio public-sector labor statute. It then discusses some significant twists and turns in the 1990s. Moving to the twenty-first century, it discusses some (mostly positive) trends for public-sector unions in the first decade of the century, but then turns to the wave of anti-union legislation in 2011 and beyond — although even here, there are some developments in the other direction, e.g. union rights for TSA employees. These events feature defeats and victories over issues as basic as whether public employees should have the right to bargain collectively at all, and they have shaped the entire U.S. labor movement, including the public sector. The also show how public-sector labor relations remains a strangely unsettled issue. The final sections discuss the practical and theoretical policy issues at stake, and attempt to make some predictions for the future.
Joe is one of the preeminent public sector labor law scholar in this country, and I would highly recommend this very-readable piece to anyone who is trying to understand the on-going disputes over the place of public sector unions in American society. I have been front and center as far as the Wisconsin public sector union dispute is concerned since 2011 and am looking forward to reading Joe's piece in more depth to place my own experiences in historical perspective.
Thursday, November 14, 2013
Cunningham-Parmeter on Men at Work, Fathers at Home: Uncovering the Masculine Face of Caregiver Discrimination
Despite their many workplace advances, women remain constrained by an enduring social expectation that they will manage their families’ domestic lives. Women will not achieve full workplace equality until men do more at home, and men will not enter the domestic sphere if they face employment retaliation for doing so. Men at Work, Fathers at Home addresses this problem by critically evaluating the legal challenges that fathers and other male caregivers face in proving claims of workplace discrimination. Drawing from Supreme Court precedent and gender theory, the Article explains how masculine norms deter men from asserting their caregiving needs at work, while undermining their ability to prosecute discrimination claims in court. By examining how these men can combat biases against male caregiving, the Article seeks to advance the goal of gender equality for both sexes.
Wednesday, November 13, 2013
Today, the Supreme Court heard arguments in Unite Here v. Mulhall, which addresses whether neutrality and card-check agreements, among others, run afoul of Section 302. I haven't had a chance to review the argument transcript, but based on reports of the argument, it seems to be falling along the expected lines. As usual, Justice Kennedy appears to represent the swing vote and his statement that Mulhall's argument "is contrary to years of settled practices and understandings" should give unions some hope. That said, many of the Justices seemed disturbed by part of the deal in which the union said it would contribute $100,000 to promote a referendum that the employer supported. This echoes my previous concern about this case and why the union would seek cert. Although the Court may not hold all neutrality and similar agreements to fall under Section 302, they might well hold that other exchanges--particularly ones involving significant expenditures--do. Jack Goldsmith makes a similar point in his post at On Labor.
Finally, the standing issue (resulting from, among other things, the fact that the case is in a right-to-work state) was clearly on the mind of some Justices. Thomas Frampton (a recent Berkeley grad) may score himself a Supreme Court cite with his recent essay arguing this standing point.
Hat Tip: Patrick Kavangh & James Young (whose colleague at NRTWLDF argued on behalf of Mulhall)
Sunday, November 10, 2013
While Justice Scalia's caution that Title VII is not "a general civility code" has been repeatedly invoked, it hasn't stopped the spread of employer civility codes. Such rules probably owe something to the desire to sanitize the workplace as a prophylactic against sexual or other harassment claims, but there also seems to be a deeper concern about, well, civility.
A quick Google search reveals warnings that swearing can get you fired, countered by claims that profanity improves productivity, and arguments that cursing will make you more popular. As is often the case, social science -- or at least the blogosphere -- seems to leave us with fewer answers than questions.
In any event, employers seem to be responding to the issue with policies that bar profanity, regardless of whether it has any connection to actionable harassment. Some how-to versions of the policy have their amusing side, including one source that sounds like a 12-Step program for recovering swearers and recommends coming up with socially-acceptable substitutes for profanity. Egad.
While "profanity" originally had very strong religious connotations, the term today is used in this context to embrace coarse or vulgar speech. Barring racial slurs or sexualized references obviously has a close connection to hostile work environment claims, and it's not hard to see how other terms can implicate such claims under age and disability antidiscrimination laws. That said, there really are coarse insults that are not gender specific nor especially sexual -- "asshole" comes to mind, as do common words for excretory functions.
But a recent district court case, Griffin v. City of Portland, raised yet another potential problem for some varieties of profanity -- this time reverrting to in the term"s original meaning of "desecrating what is holy or sacred." The claim was harassment on the basis of religion. While there was other evidence of hostility to plaintiff because of her Christian beliefs, a recurrent theme was her objections to others taking God's name in vain. One dramtic incident was triggered by her objections to the use of "Jesus Christ" as an expletive.
The court denied summary judgment to the City, but did so by finding a fact question of whether the references to God were because of plaintiff's religion. Presumably, proof that such usage was part of the speakers' normal speech patterns would avoid any liability. The court wrote:
For instance, it is unlikely that a coworker who used a curse word without knowing that the word offended Ms. Griffin for religious reasons used the word around Ms. Griffin because of her religion. Rather, such a coworker likely used the curse word without contemplating whether it would bother or offend anyone, merely because he or she was in the habit of using profanity. Evidence that the coworker quickly apologized and refrained from cursing in Ms. Griffin's presence thereafter would bolster the argument that that coworker had not cursed because of Ms. Griffin's religious beliefs, although such evidence is not necessary.
Makes sense, right? But what if the co-worker, when told of Ms. Griffin's objections, did not cease using such language? Not responding to a civil request to avoid offensive language might not be praiseworthy, but does continuing a preexisting speech pattern show intent to harrass or just garden variety insensitivity? Or even, if we believe some of the commentary, an inability to change ingrained patterns.
Of course, an antiprofanity policy would tend to insulate employers from having to worry about these concerns -- although enforcing such a policy poses its own problems. Nevertheless, cases like Griffin might well add impetus to what already seems to be a growing phenomenon in many workplaces.
Friday, November 8, 2013
Our own Paul Secunda has a new paper available for download on SSRN: An Analysis of the Treatment of Employee Pension and Wage Claims in Insolvency and Under Guarantee Schemes in OECD Countries: Comparative Law Lessons for Detroit and the United States. Here is the abstract:
To put the plight of the Detroit city employees into an international and comparative context when it comes to considering how their pension and wage claims should be treated in bankruptcy, it is instructive to consider how similar employee pension and wage claims would be treated in corporate insolvencies in other countries. It is necessary to focus on corporate insolvencies in other countries as the relevant comparison because most other countries do not have government systems in which municipalities have the same financial independence to borrow money and take on debt as municipalities do in the United States as part of the municipal bond market. Additionally, exploring the corporate bankruptcy systems in other countries provides a beneficial way to consider how to approach municipal bankruptcy situations in the United States, especially since corporate and municipal bankruptcies in the United States have a number of features in common when it comes to employee creditor claims.
This article therefore undertakes a comparative analysis of the treatment of pension and wage claims in insolvency proceedings and under guarantee schemes in the thirty-four member countries of the Organization of Economic Cooperation and Development (OECD) to understand whether the United States’ approach to employee claims in bankruptcy (in both the corporate and municipal context) is consistent with international norms. After completing the comparative analysis (which is comprehensively set out in the Country-by-Country Appendix at the end of this paper), this article then highlights common approaches to these issues, as well as important distinctions, setting up a number of tables to summarize the results.
All in all, most OECD countries have adopted hybrid systems which combine both some form of priority for both pension and wage claims, as well as some form of guarantee fund to complement the insolvency system. It is especially important to have these guarantee funds in place because insolvency processes can last for years, while the guarantee schemes are more likely to pay employees their claims within weeks or months. Unfortunately, the United States provides only limited priorities in most bankruptcy proceedings (and no such wage or pension priorities in Chapter 9 municipal proceedings), a guarantee system under the Pension Benefit Guaranty Corporation (PBGC) that is limited to pension plans, and then only to private-sector defined benefit pension plans. Neither private-sector defined contribution plans nor public sector pension plans come under a guarantee scheme in the United States.
One possible approach to employee claims in both municipal and corporate bankruptcies would be to pass pension and bankruptcy reform laws similar to what Canada enacted in 2008 as part of its Wage Earner Protection Program Act (WEPPA). Unlike the American system, WEPPA provides limited absolute priorities for pension contributions and a broad array of wage claims in insolvency, as well as a robust wage guarantee scheme. As to the policy reasons supporting this approach, it appears that greater emphasis is placed on the need to protect the weakness of employees creditors in the insolvency process as opposed to focusing on the need to ensure the existence of cheap, accessible credit for companies and governments.
This article concludes that given the relative vulnerability of employees and the sophistication of most lenders, the United States should balance these interests to provide increased protection for employment claims during municipal and corporate insolvency proceedings through giving heightened priority treatment to employees pension and wage claims in bankruptcy in tandem with a federally-operated guarantee scheme for both pension and wages claims.
An important and timely topic, especially as the public pension crisis looms large in this country.
Thursday, November 7, 2013
Michele Tiraboschi, ADAPT Scientific Coordinator at the University of Bergamo in Italy, writes to inform us that the call for applications for the International Doctoral School in Human Capital Formation and Labour Relations promoted by ADAPT and the University of Bergamo has been published.
40 positions are available, 22 of them will be funded through a scholarship and 4 through advanced-level apprenticeship contracts. The deadline to send applications is 18 November 2013 at 12.00 a.m.
This year, they are providing the opportunity to enter an Industrial PhD in Labour Productivity and Workplace Change, in order to strengthen the cooperation between employers and professionals within the productive system. In addition, by way of special agreements, a number of positions will be available to workers employed in highly qualified jobs at their own companies, provided that they pass the selection procedures and are admitted to the PhD Programme.
Employers who are interested in supporting the School or hosting interns, as well as prospective candidates, can send an email to firstname.lastname@example.org for further enquiries.PS
Wednesday, November 6, 2013
Malcolm Sargeant and Michele Tiraboschi of ADAPT in Italy have sent the latest issue of the E-Journal of International and Comparative Labour Studies, which is concerned with whistleblowing.
Malcolm and Michele would like to thank David Lewis and Wim Vandekerckhove who guest edited this edition, and the other authors for their excellent contribution.PS
Sam Bagenstos has brought to my attention his new article in the Michigan Law Review entitled: Employment Law and Social Equality.
Here is the abstract:
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation.
Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers.
This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Very interesting new meta-theory on what animnates employment law. As an ERISA guy, I think Sam's social equality theory equally applies to how the law should protect employee benefit plan participants and beneficiaries from opportunitistic behavior by plan administrators, plan sponsors, and their third party advisors and consultants.
An important new contribution to employment law theory that should be on the top of any workplace prof's reading list.
Congratulations to Neville Harris (Univ. of Manchester School of Law (UK)) on the publication of his new book: Law in a Complex State: Complexity in the Law and Structure of Welfare.
From the publisher:
Approximately half of the total UK population are in receipt of one or more welfare benefits, giving rise to the largest single area of government expenditure. The law and structures of social security are highly complex, made more so by constant adjustments as government pursues its often conflicting economic, political and social policy objectives. This complexity is highly problematic. It contributes to errors in decision-making and to increased administrative costs and is seen as disempowering for citizens, thereby weakening enjoyment of a key social right.
Current and previous administrations have committed to simplifying the benefits system. It is a specific objective of the Welfare Reform Act 2012, which provides for the introduction of Universal Credit in place of diverse benefits. However, it is unclear whether the reformed system will be either less complex legally or more accessible for citizens.
This book seeks to explain how and why complexity in the modern welfare system has grown; to identify the different ways in which legal and associated administrative arrangements are classifiable as 'complex'; to discuss the effects of complexity on the system's administration and its wider implications for rights and the citizen-state relationship; and to consider the role that law can play in the simplification of schemes of welfare. While primarily focused on the UK welfare system it also provides analysis of relevant policies and experience in various other states.
This book represents the culmination of Neville's project on 'complexity' in welfare systems throughout Europe. Although the book focuses on the United Kingdom and some other non-US countries, the lessons to be learned are valuable ones as we consider going forward how to improve the complex social insurance system that we have here in the United States.
Congratulations to Susan Carle (American University Law) on the publication of her new book: Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press 2013).
From the Publisher:
Since its founding in 1910--the same year as another national organization devoted to the economic and social welfare aspects of race advancement, the National Urban League--the NAACP has been viewed as the vanguard national civil rights organization in American history. But these two flagship institutions were not the first important national organizations devoted to advancing the cause of racial justice. Instead, it was even earlier groups -- including the National Afro American League, the National Afro American Council, the National Association of Colored Women, and the Niagara Movement - that developed and transmitted to the NAACP and National Urban League foundational ideas about law and lawyering that these latter organizations would then pursue.
With unparalleled scholarly depth, Defining the Struggle explores these forerunner organizations whose contributions in shaping early twentieth century national civil rights organizing have largely been forgotten today. It examines the motivations of their leaders, the initiatives they undertook, and the ideas about law and racial justice activism they developed and passed on to future generations. In so doing, it sheds new light on how these early origins helped set the path for twentieth century legal civil rights activism in the United States.
A fascinating new look at the history of the civil rights movement, going well beyond the normal narrative of the 20th Century. A must read for any person who wants to learn more about the history of race relations and civil rights developments during the earlier parts of United States history.
Tuesday, November 5, 2013
After years of no news, it looks like there is suddenly movement on the Employment Non-Discrimination Act. The current version, introduced in both the House (H.R. 1755) and the Senate (S. 815) on April 25th of this year, was voted out of committee in July and then had stalled, when Monday, the Senate overwhelmingly voted to invoke cloture and move forward to a vote. The Senate version is expected to pass as early as this week.
John Boehner has apparently said that he'll oppose the bill in the house, arguing that it will lead to frivolous litigation and hurt small businesses. Another frequent critique of the legislation is that it will interfere with religious freedom, although it does not apply to religious organizations that are allowed to discriminate on the basis of religion under Title VII.
Interestingly, according to polls, most people support a ban on LGBTQ discrimination, and in fact 80% of those polled think this protection already exists. There are certainly arguments that Title VII's ban on sex discrimination prohibits at least some discrimination on the basis of sexual orientation and identity (see here, here, and here for some of the EEOC's views supporting that). But the courts have not always agreed, and according to this infographic, only 21 states (and DC) have a ban on sexual orientation discrimination while 16 states (and DC) ban discrimination on the basis of gender identity.
The oral argument in Sandifer v. US Steel occurred today, with Eric Schnapper (U. Wash.) arguing for the plaintiffs. At issue is the meaning of "clothes" in FLSA donning and doffing cases, in particular, whether certain safety-related attire should be consider "clothes." This is important, because of the rule that donning and doffing "clothes" at the beginning or end of the day is not on-the-clock activity that requires wage payments.
Based on some reports, it looks like the Court may be skeptical of the employees' arguments. But, as we know, you can never sure.
For more background on the case, see the SCOTUSBlog entry.
Hat Tip: Patrick Kavanagh
The oral argument for Noel Canning has been scheduled fro January 13, 2014. It should be quite a lively argument, so stay tuned.
Hat Tip: Patrick Kavanagh
Marty Malin (Chicago-Kent) writes:
I am pleased to advise you that the law firm Jackson Lewis is again sponsoring and IIT Chicago-Kent College of Law is again administering the annual Louis Jackson Memorial National Law Student Writing Competition in Employment and Labor Law. Eligible are all students at ABA accredited law schools who have had at least one course in labor or employment law (defined broadly). Students may submit papers up to 35 pages in length. Entries are due January 21, 2014.
Entries are blind judged by a panel of five law professors. Netiher Jackson Lewis nor Chicago-Kent plays any role in judging the entries.
Attached is a flyer announcing this year's competition. Please
encourage your students to enter.
We use five judges and rotate one judge off the panel each year,. If any full time labor/employment law professor is interested in judging, please email me off list and I will add you to the list of interested judges.
Sunday, November 3, 2013
Jon Harkavy sends us a copy of Arizona v. Asarco, LLC, a Ninth Circuit decision involving the relationship between a Title VII nominal compensatory damage award and a punitive damages award. Jon points out that the case seems an important application of BMW v. Gore, and that it's ironic that the result here is a "constitutional" limit of 125,000 to 1 for damages to a victim, whereas the courts routinely approve fee awards to attorneys in nominal damages cases that far exceed that ratio.
Friday, November 1, 2013
Laura Cooper (Minnesota) sends word of the Annual Law Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and College of Labor and Employment Lawyers. Here's the pertinent information:
The American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers have announced the rules and deadlines for their Annual Law Student Writing Competition. J.D. students at accredited U.S. law schools are eligible to enter. Entries may address any aspect of public or private sector labor and/or employment law relevant to the American labor and employment bar. Three prizes may be awarded by the College of Labor and Employment Lawyers: First Place: $1500, Second Place: $1000, Third Place: $500. The first-place winning article will be published in the ABA Journal of Labor & Employment Law and its author will be a guest at the annual CLE program of the ABA Section of Labor and Employment Law and honored at the Annual Induction Dinner of the College of Labor and Employment Lawyers. The deadline for submission of articles is Midnight (EDT) on May 15, 2014. Full competition rules are available here.
The first-place winner of the 2013 competition, Matthew S. Smith, a third-year law student at American University, will be honored November 9th at the College’s dinner in New Orleans for his article, A Matter of McKnight and ADAAA: Why Title I Protects Former Employees with Disability Who Receive Fringe Benefits.
Vol. 30, #2 (Spring 2013)
- Marcia L. McCormick, Gender, Family, and Work, p. 309.
- Brandan S. Maher, Thoughts on the Latest Battles over ERISA's Remedies, p. 339.
- Nantiya Ruan, Same Law, Different Day: A Survey Of the Last Thirty Years of Wage Litigation and its Impact on Low-Wage Workers, p. 355.
- Geoffrey Christopher Rapp, Four Signal Moments in Whistleblower Law 1983-2013, p.389.
- Richard A. Bales & Mark B. Gerano, Oddball Arbitration, p. 405.
- Nancy B. Schess, Esq., Then and Now: How Technology Has Changed The Workplace, p.435.
- Kathryn L. Moore, A Comparison of the Role of the Employer in the French and U.S. Health Care System, P.459.
- Laura McNeal, Total Recal: The rise and Fall of Teacher Tenure, p. 489.
- Joseph Slater, The Strangely Unsettled State of Public-Sector Labor in the Past Thirty Years, p. 511.
- Robert A. Kearney, The Future: They Will Lead; The Law will Follow, p. 543.
- Diana M. Cannino, Implementing A Long Term Work Visa Program to Document the Undocumented and Protect the U.S. Workforce, p. 547
- Matthew Crawford & Joshua Goodman, Below the Minimum: A Critical REview of the 14(c) Wage Program For Employees with Disabilities, p. 591.