Wednesday, May 31, 2006
Chris Shays, a Republican congressman from Connecticut, has introduced a bill that would amend the National Labor Relations Act in order to mandate quicker determinations of labor law disputes by the National Labor Relations Board.
require the Board to: (1) certify an election result not later than 12 months after the representation petition was filed; and (2) issue its order in a ULP case not later than 6 months after the General Counsel issued his complaint (not later than 12 months for “novel” issues). These statutory deadlines may be extended only with the agreement of the parties.
As the Labor Law Blog notes, by requiring these quicker case disposition times, there would be a substantial improvement over the current rate at which cases are decided:
In FY 2005, the median for processing a ULP case from complaint to order was approximately 19 months. See Seventieth Annual Report of the NLRB at 171 (Table 23).
The median for representation cases awaiting Board decision as of September 30, 2005, was approximately 27 months from the date the petition was filed.
Of course, you cannot get blood out of a stone and you can legislate all the statuotry deadlines you want, but if the NLRB does not have the resources in order to process cases quicker, the only thing this bill may do is deprive the NLRB of jurisdiction to decide some cases (certainly an outcome some in Congress would be delighted to see).
Harry Hutchinson (George Mason) has posted on SSRN his forthcoming article in the William & Mary Bill of Rights Journal, A Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment Values, 14 Wm & Mary Bill Rts. J. (forthcoming 2006).
From the abstract:
This article deploys public choice theory and postmodern identity claims to develop a far-reaching understanding of the union dues dispute, which suggests that the burden of proof on the existence of and/or the possibility of an enduring union community should be placed on proponents of this view. While the postmodern project can be seen as an unsettled approach that is driven by coherency issues, not the least, its insistence on offering the good without the true, it supplies modest benefits by revealing the conceivably infinite varieties of human preferences in contemporary America.
The absence of preference convergence, understood from the perspective of both public choice theory and postmodern identity construal, vitiates prevalent assertions that unions operate as a paradigm of voluntary cooperation characterized by solidarity. The conflict between putative solidarity and the actual presence of preference diversity might well be the genesis of this ongoing dispute.
I intend to show that union expenditures, such as organizing, that do not embrace an explicitly political purpose can nevertheless diminish the interest of workers in freedom of expression, freedom of association, and a variety of other interests that allow individual workers and subgroups of workers to define their own identities in what has become a pluralistic society. Lastly, I supply a number of proposals for clarifying judicial, NLRB, and scholarly analysis associated with the intensely fought debate over union dues.
You can download this provocative labor law article here.
Citigroup's (C) Smith Barney brokerage unit has agreed to pay $98 million to settle claims on behalf of thousands of current and former brokers that they are owed overtime pay and other reimbursementsThe proposed settlement is the latest and largest by securities firms that claim brokers are exempt from state and federal overtime laws because they are salaried, administrative employees. Brokers' draw on commissions, a monthly loan most receive, qualify as a salary, they argued.
********************************************************************************The securities industry swallowed hard in making the argument that brokers are salaried employees because it likes to portray them as trusted financial advisors, not mere administrators, said Mark Thierman, a lawyer in Reno, Nevada. He is one of more than a dozen class-action labor lawyers who have brought the suits on behalf of brokers, primarily in California.
Their primary argument is that brokers are not salaried but receive incentive-based compensation, such as commissions, that are tied to sales. They also countered the brokerage firms' claims that the Fair Labor Standards Act exempt salespeople from overtime because the exemption applies only to store sales, not trades of securities.
It would be interesting to see what would happen if one of these cases made its way to trial. I don't think either side would have a slam dunk case under the salary basis test of the Fair Labor Standards Act (FLSA), and that might well explain why Smith Barney was so willing to settle.
Anyone else aware of any cases that discuss the exempt status of securities brokers? To the extent that these employees make fairly large salaries and carry out sophisticated job duties, is there not a policy argument that the FLSA was not meant to protect employees like these?
The Fifth Circuit has become the third federal circuit court (after the Sixth and Seventh) to refuse to enforce an employmnt arbiration agreement that Ryan's Family Steakhouse sought to impose on employees through the third-party for-profit arbitral service provider EDSI. In a decision released yesterday, the court said:
The Ryan's/EDSI contract does not contain any requirement that Ryan's submit to arbitration . . . . In fact, Ryan's ability to withdraw from its contract with EDSI after ten days' written notice suggests it retains the ability to avoid arbitration of any claim. The language in the employee/EDSI agreement that suggests that Ryan's would be bound to submit to the EDSI forum is, therefore, a misrepresentation. Because Ryan's has not yet cured this defect, EDSI canot guarantee that Ryan's will submit to arbitration, so its promise to supply a neutral arbitral forum to Ryan's employees is illusory, and the contract canot be enforced.
The case is Goins v. Ryan's Family Steakhouses, Inc., 2006 WL 1440687 (5th Cir. May 18, 2006) (Westlaw password required).
Separately, a U.S. District Court for the District of Massachusetts held that an employment arbiration agreemen containing a "no class actions" clause was unconscionable and therefore unenfoceable. That case is Skirchak v. Dynamics Research Corp., Inc., 2006 WL 1460266 (D. Mass. Apr. 6, 2006) (Westlaw password required).
Tuesday, May 30, 2006
Further Update: More interesting ruminations about the Ceballos decision by Kermit Roosevelt on Balkinization.
Update: Rather than reinvent the wheel on this one, here is some insightful commentary on Garcetti v. Ceballos by Jack Balkin over at Balkinization.
The United States Supreme Court today decided the public employee free speech case of Garcetti v. Ceballos, 547 U.S. x (U.S. May 30, 2006). You might recall that this case was scheduled for reargument in March after Justice Alito replaced Justice O'Connor on the court.
And apparently that substitution has made all the difference in this very cloe 5-4 decision, in which the court held that public employees are not speaking as citizens for First Amendment purposes when they engage in speech tied to their official duties. Justice Kennedy wrote the majority opinion, while Justices Stevens, Souter and Breyer all writing dissents.
Here is some early analysis from the AP:
The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct.
By a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner-workings. New Justice Samuel Alito cast the tie-breaking vote.
Justice Anthony M. Kennedy, writing for the court's majority, said the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job."
And Marty Lederman weighs in from the SCOTUSblog:
Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.
Stay tuned for more analysis on this very important case for the First Amendment speech rights of public employees.
University of Pennsylvania Journal of Labor and Employment Law
Volume 8, Number 3, Spring 2006
- Peggie R. Smith (left), Laboring for Child Care: A Consideration of New Approaches to Represent Low-Income Service Workers, p. 583.
- Nancy Modesitt (center), Wrongful Discharge: The Use of Federal Law as a Source of Public Policy, p. 623.
- Kye D. Pawlenko, Reevaluating Inter-Union Competition: A Proposal to Resurrect Rival Unionism, p. 651.
- Ronald Turner (right), Ideological Voting on the National Labor Relations Board, p. 707.
- Daniel E. Hartstein, Collateral Censorship and First Amendment Theory, p. 765.
Here's a story from The Pocono Record that should really instill confidence in all us about how our nuclear facilities are being guarded:
A security guard at the Three Mile Island nuclear power plant was so absorbed in playing a hand-held video game that he failed to see an inspector approach during a surprise inspection, the agency said.
The employee did not violate any rules as guards are allowed to engage in mind-stimulating activities, the state Department of Environmental Protection said.
But the alleged lapse - which follows five other reports of employee inattention in the past two years - is prompting officials to review current policies.
Brings to mind something Mr. Burns (Homer's boss of Simpson's fame and nemesis of Maggie Simpson) once said: "Oh, meltdown. It's one of those annoying buzzwords. We prefer to call it an unrequested fission surplus."
Hat Tip: Raw Story
Here's an embarrassing-for-the-profession tale about two labor lawyers - one management-side, one union-side - going at it (though it appears mostly the management side lawyer doing most of the violence) during negotiations for a new contract between bakery workers and their company. Apparently, the scuffle involved of all things providing needed information for pension proposals.
The Labor Law Blog reports from an article in the Cleveland Plain Dealer:
"Negotiations on a contract for Schwebel's Bakery workers turned testy last week when a partner from the management firm of Duvin Cahn & Hutton allegedly attacked a labor attorney from behind, choking and punching him until he brought the lawyer to the floor." The employer's lawyer claims that the union's lawyer provoked him. The union has filed a ULP charge alleging that "Schwebel's representatives approved the assault by standing and watching the attack."
As the Labor Law Blog points out, it really doesn't matter whether the company's representatives approved the attack, since unfair labor practices can be brought against any agent of an employer who interferes with the exercise of union members' collective bargaining rights, and their lawyer is certainly an agent.
I hope the ALJ/NLRB throws the book at 'em. And as we all know, there are some truly terrifying remedies avaialble for ULPs under the NLRA. Perhaps, they'll hit the attacking management side lawyer with one of those cease and desist orders.
That will show him.
Monday, May 29, 2006
Update: Michael Fitzgibbon at Thoughts from a Management Lawyer explains in nice detail the applicable Canadian labour law that applies in a strike like this.
Why most in the United States had the day off for Memorial Day, Toronto did not have the day off and was dealing with a major transit strike.
However, as of about an hour ago, transit workers in Toronto have been ordered to return to work after the Ontario Labour Relations Board declared the walkout illegal and had issued a cease-and-desist order for the pickets.
All this brings back not-so-fond memories of the NYC transit strike of last December, though it is unclear from the CBC article the reason for the workers walking out in the first place.
A civilian employee called to military duty must provide two types of notice to her employer if she wishes to return to her military job: she must first notify her employer that she is leaving, and then later she must later notify her employer that she is returning. Heather E. DePremio discusses these notice issues in The War Within the War: Notice Issues for Veteran Reemployment, available on ssrn:
Three federal statutes provide reemployment rights to veterans called to duty who later seek to return to their original non-military jobs. The statutes require such a veteran to provide her non-military employer with two types of notice. First, the veteran must provide notice prior to leaving for military duty. Second, the veteran must provide notice when military duty is complete and the wishes to return to her original job.
Unfortunately, the applicable statutes and regulations provide little indication of what constitutes proper notice, other than that the notice must be “adequate” or “reasonable.” Not surprisingly, court decisions are inconsistent. The resulting indeterminacy disserves both employers and returning veterans. Employers cannot proactively implement reemployment policies, and instead must react to demands for reemployment on a case-by-case basis. Returning veterans may not know until they appear for work whether they still have a job.
This article examines in detail both the pre- and post-deployment notice obligations imposed by the federal statutes. It proposes that the federal statutes be amended to expressly enumerate the factors that courts will consider in evaluating notice. These factors should include the length of the veteran’s deployment, the veteran’s position within the company, and the (in)ability of the veteran to provide notice due to military commitments. Enumerating these factors in the statute will provide employers and returning veterans with better guidance regarding the adequacy of notice, and should result in more consistent case outcomes.
All three veteran reemployment right statutes were passed at times when the large numbers of veterans returning from major wars created unanticipated problems to which Congress was forced to react. There currently are more than 125,000 reservists on active duty, and another 2.6 million soldiers in the
U.S. military. Congress would serve these prospective veterans well by acting proactively to address the notice issue, so both these servicemembers and employers will know what to expect when the servicemembers return.
- Andrew S. Hartley (left), Making the Case for Mandatory Removal of Imprudent Investment Vehicles: Inside Information Can Make Employer Securities a Bad 401(k) Option, 5 Appalachian J. L. (2006).
- Joseph M. Pellicciotti (right), The Employee Polygraph Act of 1988: A Focus on the Act's Excemptions and Limitations, 51 Loyola L. Rev. 911 (2005).
- Ryan Patrick Dunn, Get a Real Job! The National Labor Relations Board Decides Graduate Student Workers at Private Universities Are Not "Employees" Under the National Labor Relations Act, 40 New Eng. L. Rev. 581 (2006).
- Megan Kelly, Making-Up Conditions of Employment: The Unequal Burdens Test As A Flawed Mode of Analysis in Jespersen v. Harrah's Operating Co., 36 Golden Gate U. L. Rev. 45 (2006).
- Joseph Mark Miller, Federal Preemption and Preclusion: Why the Federal Railroad Safety Act Should Not Preclude the Federal Employer's Liability Act, 51 Loyola L. Rev. 947 (2005).
Sunday, May 28, 2006
Apparently, the Washington Times had an article a year or so back which stated the Black and Asian female workers with bachelor degrees make more money on average that their White counterparts:
Black and Asian women with bachelor’s degrees earn more money than similarly educated white women, and white men with four-year degrees still make more money than anyone else.
Not so, says Rachel at Alas (a blog), in this meticulously argued and analyzed blog entry.
Hat Tip: Feminists Law Professors
- Christopher M. Fairman, Fuck (739).
- Cass R. Sunstein (left) & Christine Jolls (right), The Law of Implicit Bias (116).
- Eric Goldman, Co-Blogging Law (103).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Litigation (87).
- Patrick Macklem, Social Rights in Canada (62).
- Patrick Macklem, Social Rights in Canada (62).
- Katherine Van Wezel Stone (photo above), Legal Protections for Workers in Atypical Employment Relationships (61).
- Robert A. McCormick & Amy C. McCormick, The Myth of the Student-Athlete: The College Athlete As Employee (60).
- James J. Brudney, Isolated and Politicized: The NLRB's Uncertain Future (54).
- Stephen A. Broome, An Unconscionable Application of the Unconscionability Doctrine: How the California Judiciary is Circumventing the Federal Arbitration Act (32).
Saturday, May 27, 2006
Foundation Rescinds Book Award Because of Author's Opposition to Unionization of Yale Graduate Students
According to the Chronicle of Higher Education, the Sidney Hillman Foundation at the last minute rescinded an award it already had announced would go to authors Ian Shapiro and Michael Graetz. The recission apparently was due to Shapiro's opposition to the unionization of Yale graduate students. From Book Prize Is Yanked From Yale Professors Over Author's Role in Graduate-Student Labor Dispute:
- Two Yale University professors, Ian Shapiro and Michael J. Graetz, expected to receive a 2006 Sidney Hillman Award on Tuesday at a ceremony in New York City. Instead, they got phone calls on Tuesday morning telling them that the judges had reversed the decision to honor the professors' book on the repeal of the estate tax....
- The telephone calls came from Bruce Raynor, president of the Sidney Hillman Foundation, which sponsors the awards....
- Mr. Raynor told the authors that the last-minute reversal had been based on information that came to light about Mr. Shapiro's dealings with members of GESO, the Graduate Employees and Students Organization, in its efforts to organize a graduate-student union at Yale in the 1990s....
Mr. Graetz and Mr. Shapiro pointed out that the book, which was published last year by Princeton University Press, does not address labor organizing. "There is no connection to GESO at all," Mr. Graetz said. "This book has absolutely nothing to do with the graduate students."...
- The move toward rethinking the award began last week. On Thursday, May 18, the Hillman Foundation ran an advertisement in The New York Times listing the 2006 winners in several categories: book, magazine, broadcast, photojournalism, newspaper, and blog, a new category this year. Mr. Shapiro's and Mr. Graetz's book was listed as the winner in the book category. Although Mr. Shapiro and Mr. Graetz had written "an excellent book," Mr. Raynor told The Chronicle, the decision came down to "more than just the words on the page."
Mr. Meyerson [one of the judges] read a statement he delivered Tuesday night at the awards ceremony. "Normally judges evaluate the dancer, not the dance," he said. "What we tried to do in the excruciatingly limited time available to us was to gauge the severity and credibility of the allegations. ... A crucial factor for us was that the National Labor Relations Board in the region issued a complaint against several Yale professors, and Professor Shapiro most particularly, for these actions."
As Mr. Meyerson and Mr. Shapiro both noted, the labor board never adjudicated the graduate students' complaint because their labor action failed to meet certain legal criteria. "There was never any hearing on the merits of the complaint," Mr. Shapiro said. "People like me never got to come into a hearing and say, What's the evidence that I threatened anyone?"
Mr. Meyerson said he had consulted with a friend who was a labor lawyer, who told him that "such a complaint would not have been issued if the NLRB attorneys had not found the claims to be credible and meritorious." In the end, Mr. Meyerson and the other judges concluded that "Professor Shapiro's actions rose to a level that required the rethinking of the award."
"What we came down to was that the book was eminently qualified to win many other awards," he said, but did not fit the criteria of the Hillman Prize.
Hat tip: Paul Caron at TaxProf Blog.
- Patrick Macklem (photo above), Social Rights in Canada (62).
- Peer Zumbansen, The Parallel Worlds of Corporate Governance and Labor Law (28).
- Rob Euwals, Daniel J. van Vuuren, & Ronald P. Wolthoff, Early Retirement Behaviour in the Netherlands: Evidence from a Policy Reform (22).
- Wolfgang Franz & Friedhelm Pfeiffer, Reasons for Wage Rigidity in Gemany (19).
- Laurence R. Helfer, Understanding Change in International Organizations: Globalization and Innovation in the ILO (18).
- J. Michael Orszag & Neha Sand, Pensions: Corporate Finance & Capital Markets (93).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Litigation (87).
- Bengt R. Holmstrom, Pay Without Performance and the Managerial Power Hypothesis: A Comment (82).
- Katherine V.W. Stone, Legal Protections for Workers in Atypical Employment Relationships (60).
- Elizabeth Rose Schlitz (photo above), Motherhood and the Mission: What Catholic Law SChools Could Learn From Harvard About Women (46).
SeattlePi.com is reporting that there is an escalating labor dispute between air traffic controllers and the Federal Aviation Administration (FAA) at Seattle Tacoma airport.
According to the article, the sides are an impasse in their negotiations:
Air traffic controllers at Sea-Tac Airport handed out leaflets [this past] Tuesday about their stalled contract, saying it would lead to pay cuts for incoming employees at a time when many veterans have to retire.
Their union, the National Air Traffic Controllers Association, and the Federal Aviation Administration have been at an impasse since April.
Because of the differences, Congress has until June 5 to find a legislative resolution to the dispute.
If federal lawmakers do not find one, the FAA can implement its last, best contract offer -- which the union says also would cap pay for current employees and cut wages for those who would replace them.
Air traffic controllers are barred by law from striking. Those who went on strike in the 1980s were fired.
Given the divisive and unfortunate past surrounding air traffic controller labor disputes, this is definitely one controversy worth keeping track of.
Here's an interesting update from The Disabled Worker Law Blog. According to the post, the New York State Insurance Commission has outlawed so-called discretionary clauses in ERISA long-term disability plans.
According to Troy Rosasco at The Disabled Worker:
Insurance companies frequently used discretionary clauses to unfairly deny legitimate long term disability claims by claiming their policy gave them “discretion” to decide what is and is not a disability. Discretionary clauses also handcuffed federal court judges who reviewed the unfair denials.
Now - New York residents with ERISA group long term disability policies will have greater success challenging disability claim denials or terminations. Federal Judges will have far greater leeway in deciding who is disabled from their ‘own occupation’ or ‘any occupation’.
Friday, May 26, 2006
The Alexander Hamilton Institute's Benefits Alert Newsletter is reporting that there are a number of employee benefits-related rulemaking actions on tap for consideration this summer. Of particular note, the Department of Labor's Employee Benefit Security Administration (EBSA) is considering a number of amendments for ERISA Section 404(c) plans.
Such pension plans allow participants to exercise control over the assets in their accounts, and consequently, plan fiduciaries do not have the same potential fiduciary liability for losses resulting from participants's investment decisions.
One part of the rulemaking under consideration this summer would require that plan administrators provide the necessary information about fees and expenses so that participants can make informed investment decisions.
Another proposed amendment would set forth the types of investments that qualify as default investments when participants fail to make investment elections themselves and create a "safe harbor" for plan sponsors and fiduciaries who select such qualified, default investments.
Hearing on these rulemakings are scheduled for June and August 2006.