Workplace Prof Blog

At the Intersection of Blogging and Employment Law

As some readers of this blog may be aware, there was a mini scandal in the blogging world last week when the author of the Underneath Their Robes blog (who utilized the pseudonym Article III Groupie (AG3)) was revealed as being one David Lat, an assistant United States Attorney for the District of New Jersey.  Recent press articles suggest that Mr. Lat's job with the Justice Department may be in jeopardy because of his blogging activties.

Which all raises a very interesting public employment law question: To what extent can Mr. Lat be terminated from his public employment for engaging in this blogging activity?  The answer would seem to turn on the Connick/Pickering First Amendment "two step."  First, was the speech on a matter of public concern, and, if so, does the government's interest in efficiency outweight the First Amendment speech rights of Mr. Lat?

There is no easy answer to either of these questions, but here are some thoughts. Given that Underneath Their Robes has been billed as the premiere gossip site on federal judges in America, it is not evident that there is any real public concern being addressed (at least not in the sense of core  political speech, unless knowing who are the "Superhotties of the Federal Judiciary" counts).  But even if we assume "public concern," doesn't the U.S. Attorney in New Jersey have the right (nay, responsibility) to maintain the credibility and stature of his organization in the eyes of the public in these circumstances?  And won't this revelation about Mr. Lat's identity cause substantial disruption  to the United States Attorney's functions and missions?

One might also think of the Supreme Court case in Dale dealing with expressive associations and the rights of the Boy Scouts to choose whom they wish to be the public persona of their organization. Is the United States Attorney's office an expressive association? (We might know more after the Solomon Amendment case is decided)  And if so, under Dale, does it have the right not to associate with bloggers like Mr. Lat?

All comments are welcome.

Hat tip: Howard

Posted by:  Paul M. Secunda

New NLRB Nomination

President Bush has annouced that he will nominate Peter Kirsanow, a Cleveland Attorney, to fill one of two vacancies on the five-member National Labor Relations Board.  Kirsanow has most recently served as member of the U.S. Civil Rights Commission.  Kirsanow's term, if confirmed, would run until 2008.

President Bush has also re-nominated Peter Schaumber to continue until 2010.  He has also nominated Ronald Meisburg, a former Board Member, to serve as general counsel to the Board.  Finally, former Member Dennis Walsh has been nominated to fill another seat. The other two Board Member positions are currently held by Chairman Robert Battista (term expires December 2007) and Member Wilma Liebman (term expires August 2006).

Hat Tip:  Joe Slater

Posted By:  Paul M. Secunda

Recently-Published Scholarship

Tom R. Tyler, Promoting Employee Policy Adherence and Rule Following in Work Settings: The Value of Self-Regulatory Approaches, 70 Brooklyn L. Rev. 1287 (2005).

Scott Kording, Slicing Through the Gordian Knot: "Employers," Standing, and Removal Under ERISA, 2005 U. Ill. L. Rev. 1257 (2005).

David L. Abney, Excluding the Disabled From Trial: The Impact of the Americans With Disabilities Act, 28 Am. J. Trial Advoc. 415 (2005).

Amy A. Weems, A New Use for Civil RICO: Employees Attempt to Combat the Hiring of Illegal Immigrants, 28 Am. J. Trial Advoc. 429 (2005).

Eric Tucker, "Great Expectations" Defeated?: The Trajectory of Collective Bargaining Regimes in Canada and the United States Post-NAFTA, 26 Comparative Labor L. & Pol'y J. 97 (2004).

Alisa DiCaprio, Are Labor Provisions Protectionist? Evidence from Nine Labor-Augmented U.S. Trade Arrangments, 26 Comparative Labor L. & Pol'y J. 1 (2004).

Jean-Michel Servais, Universal Labor Standards and National Cultures, 26 Comparative Labor L. & Pol'y J. 35 (2004).

Michal Sewerynski, Toward a New Codification of Polish Labor Law, 26 Comparative Labor L. & Pol'y J. 55 (2004).

Top-5 SSRN Labor/Employment Downloads

1.    Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.

2.    Orly Lobel, The Four Pillars of Work Law.

3.    Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.

4.    Charles A. O'Reilly & Brian G. M. Main, Setting the CEO's Pay: Economic & Psychological Perspectives.

5.    Allison Christians, Social Security in the United States Treaties and Executive Agreements.

LSU to Host Conference on Privacy in the Workplace

LSU will host a conference on Privacy in the Workplace on February 9-10, 2006.  Featured speakers will include:

• Anita Bernstein
• Charlie Craver
• Matthew Finkin
• Catherine Fisk
• Rafael Gely
• Pauline Kim
• Mike Selmi
• Steven Willborn

Sex Discrimination & Harassment, Independent Contractors, and Macaws

Yesterday, the Seventh Circuit issued an opinion authored by Judge Frank Easterbrook in the employment discrimination case of Dunn v. Washington County Hospital.  Dunn, a hospital nurse, alleged that a doctor harassed and discriminated against her.  The district court ruled for the hospital.  Even if workplace conditions were discriminatory, the district court said, the hospital could not be liable since the doctor was an independent contractor with staff privileges and not an employee.  Since he was not an employee, the hospital could not control his conduct.

The Seventh Circuit reversed.  Judge Easterbrook wrote that it was irrelevant that the doctor was an independent contractor, since under Faragher and Ellerth, all that mattered was whether the employer had used its arsenal of incentives and sanctions (including discharge) to change the doctor’s conduct.  Judge Easterbrook explained:

[I]n this respect independent contractors are no different from employees.  Indeed, it makes no difference whether the actor is human.  Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing ...  It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.

Thanks to Paul Secunda for calling my attention to this case.

DOL-BLS Reports Decline in Nonfatal Workplace Injuries/Illnesses

The Department of Labor's Bureau of Labor Statistics released today a 2004 Report demonstrating the incidence rates, by industry, of nonfatal workplace injuries and illnesses.  The overall rate of injury and illness declined from 5.0 per 100 workers in 2003 to 4.8 in 2004.  Industries with the most-reported injuries and illnesses included hog and pig farming (16.9), ferrous metal foundries (16.3), manufactured home manufacturing, (15.4), truss manufacturing (14.3), and animal (except poultry) slaughtering (13.3).

EEOC Approves Revised EEO-1 Report for Employers

The EEOC yesterday voted 3-1 to approve final proposed revisions to the Employer Information Report, also known as the EEO-1 Report, which would be effective for the 2007 reporting cycle.  The EEO-1 Report is the reporting form by which most employers provide the federal government with a count of their workforces by ethnicity, race and gender, divided into job categories.  The final proposed changes to the EEO-1 Report's race and ethnic categories include:

• Adding a new category titled "Two or more races not Hispanic or Latino";
• Separating "Asians" from "Pacific Islanders";
• Adding a new category titled "Asians not Hispanic or Latino";
• Adding a new category titled "Native Hawaiian or Other Pacific Islander not Hispanic or Latino";
• Extending the EEO-1 data collection by race and ethnicity to the State of Hawaii; and
• Strongly endorsing self-identification of race and ethnic categories, as opposed to visual identification by employers.

A notice concerning the proposed revisions will be sent shortly to the Federal Register.  Links:

• Proposed EEO-1 Report, Section D (containing the proposed revisions);
• EEOC Notice to Federal Register;
• EEOC press release regarding EEO-1 proposed revisions.

Delta Hearing; DOL Report

Delta Airlines will argue today at a hearing that a federal bankruptcy judge in New York should abrogate the airline's collective bargaining agreement with ALPA.  If the parties don't settle, a ruling will be due in 30 days.

The Department of Labor issued yesterday its FY 2005 Annual Performance and Accountability Report.  The Report is downloadable in pdf format.

Yale to Host Screening of Wal-Mart Film

The Yale Workers' Rights Project, the Yale Work and Welfare Group, Yale Law Women, and the Yale American Constitution Society are sponsoring a preview screening of Robert Greenwald's new documentary, Wal-Mart: The High Cost of Low Prices, at Yale Law School on Tuesday, November 15, from 7:00 - 10:00 p.m.  Professor Jim Silk will moderate a discussion following the movie.  This event follows a standing-room only panel discussion of Wal-Mart's activities held on April 27, 2005 at Yale Law School.  That panel included Professor Vicki Schultz of Yale Law School, Professor Michael Wishnie from NYU Law School, Brad Seligman, Executive Director of the Impact Fund, Terry Collingsworth, Executive Director of the International Labor Fund, and Ben Sachs, Assistant General Counsel of the Service Employees' International Union.  For more information, contact Vicki Schultz at [email protected].

Katherine Van Wezel Stone's book, From Widgets to Digits: Employment Regulation for the Changing Workplace (Cambridge University Press, 2004) won the 2005 Michael Harrington Book Award from the American Political Science Association for the "outstanding book that demonstrates how scholarship can be used in the struggle for a better world."  The prize was awarded at the APSA Annual meeting in Washington, D.C. in September 2005. The book also was a Finalist for the 2005 C. Wright Mills Book Award from the American Sociological Association.
        From Widgits to Digits is about the changing nature of the employment relationship and its implications for labor and employment law.  For most of the twentieth century, employers fostered long-term employment relationships through the use of implicit promises of job security, well-defined hierarchical job ladders, and longevity-based wage and benefit schemes.  Today’s employers no longer value longevity or seek to encourage long-term attachment between the employee and the firm.  Instead employers seek flexibility in their employment relationships.  As a result, employees now operate as free agents in a boundaryless workplace, in which they move across departmental lines within firms, and across firm borders, throughout their working lives.  Today’s challenge is to find a means to provide workers with continuity in wages, on-going training opportunities, sustainable and transferable skills, unambiguous ownership of their human capital, portable benefits, and an infrastructure of support structures to enable them to weather career transitions.

AFSCME President McEntee to Speak at Toledo

On November 16, the University of Toledo College of Law will host Gerald McEntee.  McEntee is the International President of the 1.4 million-member American Federation of State, County, and Municipal Employees.  The speech will be open to the public, at the College of Law, at noon.   For information, contact Professor Joseph Slater at (419) 530-2008.

Workplace Diversity

Today's Wall Street Journal contains a special section on workplace diversity.  A series of well-written articles presents workplace diversity as a "business imperative" and describes the ways that companies can respond.

The New Diversity, by Carol Hymowitz, points out that "[i]f companies are going to sell products and services globally, they will need a rich mix of employees with varied perspectives and experiences. They will need top executives who understand different countries and cultures. They will need executives around the world who intuitively understand the markets they are trying to penetrate."

Back to Class, by Laura Egodigwe, describes modern trends in diversity training.  Today's training, she says, focuses on religious differences, globalization, 'microinequities' (small slights and unconscious behaviors that can add up to exclusion), work-life balance, expansion of age/generational issues (baby boomers, gen X and gen Y), and spirituality."

Moving Ahead ... But Slowly, by Joi Preciphs, profiles how racial minorities are faring in corporate America.  She examines the percentage of managerial and professional jobs held by African-Americans, whites, Hispanics, Asian/Pacific Islanders, and Native Americans.  The percentage held by minorities is increasing, but slowly, and except for Asian/Pacific Islanders, is nowhere near their percentage of the total workforce.

Beyond the Numbers, by Amy Chozick, interviews R. Roosevelt Thomas Jr., who argues that the real challenge for employers isn't just hiring -- it's making the most of a varied workforce.

A Helping Hand, by Melanie Trottman, describes the obligations many successful minorites feel to mentor junior minority colleagues -- and the challenges the mentors face in doing so.

A Special Effort discusses the ways that Starbucks has attempted to reach out to persons with disabilities, both as customers and as employees.

Then and Now, by Steven Gray, examines the ways that opportunities have changed for minority and female business school graduates from 1980 and 2005.

Delayed Recognition describes how Arab-Americans have begun to advance their rights as a minority since 9/11.

Dig In, by Jim Carlton, explains that Google has diversified the menu selections at its company cafeteria as a way of catering to its many immigrant employees.

Recently-Published Scholarship

Jill Yung, Big Brother IS Watching: How Employee Monitoring in 2004 Brought Orwell's 1984 to Life and What the Law Should Do About It [the article examines GPS minitoring of mobile employees], 36 Seton Hall L. Rev. 163 (2005).

Elaine Massock & Debra Stegall, Survey of Illinois Law: Employment Law, 29 S. Ill. U. L.J. 639 (2005).

Top-5 SSRN Labor & Employment Downloads

1.    Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.

2.    Orly Lobel, The Four Pillars of Work Law.

3.    Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.

4.    Charles A. O'Reilly & Brian G. M. Main, Setting the CEO's Pay: Economic & Psychological Perspectives.

5.    Allison Christians, Social Security in the United States Treaties and Executive Agreements.

Diversity in the Legal Workplace

An article by Morgan Morrison in this month’s Texas Bar Journal argues that law firms have a self-interest in promoting diversity.  Morrison points out that in the last year, nearly 100 corporate legal officers have signed A Call to Action: Diversity in the Legal Profession, a document created by Sarah Lee General Counsel Roderick Palmore.  Signatories to this document pledge

that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms.  We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area.  We further intend to end or limit our relationships with firms whose performance consistently evidences a meaningful interest in being diverse.

A recent survey, sponsored by the Houston-based law firm of Fulbright & Jaworski, of more than 350 in-house counsel at large companies revealed that 40% of the companies consider diversity important in selecting outside counsel, 30% report having discussed diversity with outside firms, and 16% have written diversity policies to which outside counsel must adhere.

For the full text of Morrison’s article, see Embracing Diversity: Your Business Depends on It.

DOL Issues Guidance Regarding the Effect of Natural Disasters or Inclement Weather on FLSA Salary Exemption

The Department of Labor yesterday released two Opinion Letters regarding the effect that an employer's response to natural disasters or inclement weather will have on the exempt status of the employer's employees.

Section 13(a)(1) of the FLSA provides a minimum wage and overtime pay exemption for executive, administrative, and professional employees.  One test for the exemption requires that the employee be paid on a salary basis.  An employee is considered "salaried" if s/he “regularly receives . . . a predetermined amount . . . [which] is not subject to reduction because of variations in the quality or quantity of the work performed.”   Deductions may, however, be made when the employee is absent from work for one or more full days for personal reasons, other than sickness or accident.  However, if an employee is “ready, willing and able to work, deductions may not be made for time when work is not available.”

In Opinion Letter FLSA 2005-41, an employer asked whether an employee's exempt statuts would be affected if, during inclement weather or natural disasters, the employer directed the employee to take vacation or leave without pay.  The DOL answered that if the employer closes the office, the employer may require an employee to use vacation time, but once vacation time is exhausted, the employer must continue to pay the employee his/her regular salary.  If the employer's office remains open but an employee fails to report to work for a full day or more (such as on a heavy snow day), the employee may be placed on leave without pay for the days s/he is not at work.  However, if the employer's office remains open and an employee fails to report to work for less than a full day (i.e., arrives later due to heavy snow), the employer may not make any deduction to the employee's salary.

In Opinion Letter FLSA 2005-46, the DOL reiterated that "an employer that remains open for business during adverse weather emergencies may make deductions, for full-day absences only, from the pay of an otherwise exempt employee who chooses not to report for work for the day(s) because of the adverse weather emergencies, and treat any such full-day absence(s) as being for 'personal reasons' under the applicable regulations."

Other DOL Wage-&-Hour Opinion Letters released yesterday:

2005-42 (academic advisers and intervention specialists under Section 13(a)(1)).
2005-43 (aviation museum curator under Section 13(a)(1)).
2005-44 (carpet/furniture cleaning business and Section 7(i)).
2005-45 (staffing manager under Section 13(a)(1)).

English-Only Rules

Yesterday's Wall Street Journal contains an excellent article pointing out that employers requiring employees to speak only English can face discrimination suits.  The EEOC has filed one such suit against Sephora USA, the division of LVMH Moet Hennessy Louis Vuitton.  The WSJ article quotes EEOC attorney Raechel Adams as saying: "This is the type of double-standard we want to prevent.  Hispanic employees are expected to speak Spanish with customers but at the same time are reprimanded for speaking Spanish in their free time."  The EEOC reports a significant increase in charges of discrimination based on English-only rules.  For the complete article, see Testing 'English Only' Rules.

Getman to Speak at Case Western

Julius Getman will speak on March 8, 2006, at Case Western Reserve University School of Law.  His topic will be "The Decline of Unions: Is Labor Law to Blame."  He will address such issues as whether the law has played a role in the decline of union membership and density, and whether the NLRA should be amended to aid unionization.  A free, live webcast is available for the lecture.  Professor Getman currently is writing a book with former Secretary of Labor Ray Marshall on the future of the labor union movement.

Hiatt to Speak at Georgetown

Jonathan Hiatt, General Counsel of the AFL-CIO, will speak next Wednesday at Georgetown University Law Center.  His topic will be "Collective Rights in the Workplace Within a Culture of Individual Rights."