Thursday, November 30, 2006
The Chronicle of Higher Education has an article (subscription required) on a DePaul professor who sought to have FBI files on him from the early 1970s erased. Both the district court and the 7th Circuit found for the FBI under the federal Privacy Act and now the Supreme Court has refused to hear the professor's appeal.
Here is some more detail about the case from the article:
The professor, Mahmoud Cherif Bassiouni, had sued the Federal Bureau of Investigation, arguing that the agency should expunge its records on him, in part because they describe actions that are protected by the First Amendment. The federal Privacy Act of 1974 prohibits agencies from keeping records describing such actions, with some exceptions.
Mr. Bassiouni also argued that the records, which he received in 2001 after filing a Freedom of Information Act request, were outdated and inaccurate. The records have to do with Mr. Bassiouni's activities in the early 1970s.
A federal district court in Chicago initially ruled in favor of the FBI, and the U.S. Court of Appeals for the Seventh Circuit upheld that judgment in January, noting an exemption in the Privacy Act for records that are "pertinent to and within the scope of an authorized law-enforcement activity."
The same professor had also sued the CIA in previous years and also lost that case.
Shout out time. There is an interesting new blog that Time Magazine has just launched called Work in Progress. The blogger is Lisa Takeuchi Cullen, who is a New York-based staff writer at Time. She writes about workplace, business and society trends for the magazine and Time.com. Welcome to the labor and employment blogging world, Lisa!
In any event, Lisa has a very provocative post today which points to a study that questions whether workplace diversity training has any efficacy. She wrties:
Therein lies the proof: these expensive and time-consuming training programs simply don't work in moving minorities and women into upper management. Those are the findings of a new study published in the American Sociological Review. Worse, it's apparently the first time anyone's actually bothered to check.
Three academics--Frank Dobbin, professor of sociology at Harvard, Alexandra Kalev of the University of California, Berkeley, and Erin Kelly of the University of Minnesota--did bother. They mined 30 years of employment data from 700 companies across nine industries to study the effects of programs to address a chronic shortage of minorities in business's upper ranks.
Those programs typically fall into three categories: diversity training that seeks to change the behavior and attitudes of managers; mentoring or networking; and task forces or staff delegated specifically to help retain and promote minorities and women.
Diversity training aimed at tamping bias among managers may actually make things worse: these programs typically were a 6% decrease in the proportion of black women in management.
Definitely food for thought. Lisa suggests that diversity task forces might be better, as their is more doing and less powerpointing.
Update (12/24): The fire chief was demoted, not fired.
Here's an interesting piece from yesterday's Washington Post concerning a controversy surrounding the first lesbian, big-city fire chief.
A city panel [in Minneapolis] recommended Tuesday that officials fire Bonnie Bleskachek, the nation's first openly lesbian big-city fire chief, in the wake of firefighter lawsuits accusing her of harassment and discrimination.
Bleskachek, 43, was hailed as a trailblazer when she was promoted to the top job two years ago, but her tenure has been troubled.
Three female firefighters have sued, alleging various acts of discrimination and sexual harassment. Two of the lawsuits were settled. Earlier this month, a male firefighter brought another lawsuit, alleging he was denied advancement because he is male and not gay.
A city investigation is ongoing. This summer, a separate investigation by the city's Department of Civil Rights into a 2003 complaint by a male firefighter found it "likely" that the department gave preferential treatment to lesbians or those who socialized with them.
I have to say that my first thought was that this was just about a bunch of disgruntled employees who did not want a lesbian representing their fire department. But I am somewhat surprised that the city's own civil rights department found that it was likely that she gave preferential treatment to those who were also lesbian or their friends.
I guess anything is possible, including reverse-sexual orientation discrimination, but I just get the sense that a lot more is going on here that is not being reported.
Wednesday, November 29, 2006
Maria Ontiveros (San Francisco) has posted on SSRN her forthcoming piece which will appear as a chapter in the book Multiple Voices: Reworking Women's Labor in the Global Economy. The piece is entitled: Harassment of Female Farmworkers - Can The Legal System Help?
Here is the abstract:
This paper provides an in depth and highly textured description of "sexual harassment" as experienced by female farmworkers in California. It explains how the harassment is affected by the extremity of the consequences she faces if she does not comply with the harassment; the structural difficulties in the reporting of and response to these incidents of sexual harassment; the sexualization of migrant women; the cultural factors that influence the harassment; and the fluidity of her workplace. It then critiques both current legal doctrine and current feminist theories of sexual harassment as inadequate to address these workers' concerns. It suggests an alternative, contextual approach to "sexual harassment" that would better help female farmworkers, as well as provide a more satisfactory theoretical framework for all female workers. This paper will appear as a chapter in the book Multiple Voices: Reworking Women's Labor in the Global Economy, edited by Sharon Harley and Lynne Bolles, and to be published by Rutgers University Press.
Ross Runkel in his most recent Employment Law Memo has a write-up on an interesting ERISA denial of benefits claim case out of the Second Circuit.
In Tocker v. Phillip Morris, No. 04-5904 (2nd Cir. Nov. 22, 2006), the court considered a situation in which the company failed to place the necessary discretionary Firestone language into its plan's summary plan description (SPD), but nevertheless sought and received arbitrary and capricious review of a plan administrators benefit determination (involving the calculation of pension credits) based on discretionary language in other ERISA plan documents.
The court said that the absence of the Firestone language in the SPD was not fatal as long as the appropriate language could be found in other plan documents.
Ross describes the court's analysis thusly:
The court held that "[t]he arbitrary and capricious standard of review is warranted where the plan documents provide for discretionary authority, the summary plan description does not contain any conflicting language, and the applicable statutes and regulations do not require that the SPD contain provisions addressing the issue." The court noted that "those of our sister circuits to have considered the issue have reached the same conclusion [more particularly, the 8th, 9th, and 11th Circuits]." Since the trial court correctly applied the appropriate standard of review, the court affirmed as to the pension credit claim.
I have to say that I disagree with the court's conclusion. The SPD is meant to provide information to plan participants and beneficiaries in lay terms about their benefits and the procedures for obtaining those benefits. An individual should not have to dig through complicated plan documents to discover the appropriate judicial review standard once his or her benefit claim has been denied. They should only have to look in the SPD and if the appropriate language is not in there, they should be able to rely on the more favorable judicial review standard.
Tuesday, November 28, 2006
Are you a stressed-out worker in a crowded, noisy cubicle and just can't take it anymore? Then here's a story from MSNBC which tells you that you are not alone in suffering from "desk rage."
Desk rage manifests itself in many different ways:
Some desk-ragers “go postal,” screaming, cursing, trashing office equipment, even assaulting others. But desk rage also manifests as a slow boil that leads to gossiping at the water cooler, backstabbing, poor productivity, abusing sick days, stealing supplies or becoming irritable or depressed. Some people simply get fed up, stop communicating, put on a headset and emotionally “check out.”
So what's one possible solution according to the MSNBC article?:
In August, [National Seminars] group introduced — by popular demand — a new workshop titled “How to Manage Emotions and Excel Under Pressure” that’s aimed at helping companies combat desk rage. Human resources personnel asked for the course to help deal with office temper tantrums and other destructive work behavior.
All joking aside, preventative maintenance, including in the form of workplace seminars, is an important part of a well thought out workplace legal strategy and helps avoids workplace violence, sexual harassment, and other inappropriate workplace behaviors.
Robert Loblaw at Decision of the Day brings to our attention this interesting public employee dress code/First Amendment free speech case decided yesterday by the Sixth Circuit Court of Appeals.
In Roberts v. Ward, 05-6305 (6th Cir. Nov. 27, 2006), the court considered dress code rules that required Kentucky park employees to tuck in their shirts and cover up their tattoos from a First Amendment expression perspective.
As Robert observes, the court found no First Amendment violation because:
The employees’ reluctance to tuck in their shorts is a matter of personal comfort, not a matter of public concern protected by the First Amendment. A trickier question is whether one of the plaintiffs who wants to show off his Navy tattoo has stated a First Amendment claim. The Court explains that although the plaintiff may have a First Amendment right to express his support for the military, the plaintiff’s desire to show off his tattoo can also be fairly viewed as a personal one.
Personally, I would have not based the holding of this case of the increasingly bizarre distinctions being made between what is a "matter of public concern" and what is a "matter of private interest." Instead, using a Pickering constitutional balancing, I would have likely resolved this case by finding that whatever First Amendment right the employees have in their expression is outweighed by the efficiency concerns of the employer in maintaining its image and credibility in the community.
A number of months ago, we wrote in a previous post about the Ninth Circuit Court of Appeals en banc decision in Abatie. Abatie concerns the proper standard of judicial review in an ERISA denial of benefit claim case when the plan administrator is acting under a conflict of interest.
Fuguerre of the Blogging Employee Benefits Blog read the decision in Abatie this way:
[T]he 9th calls for a case-by-case “indefinite” abuse of discretion review that weighs conflict on the basis of the particular facts and circumstances. The influence of a potential conflict is to be taken into account, without first requiring the participant to show presence of a serious conflict. Although the burden is not necessarily passed back to the plan administrator, the court suggests that “a conflicted administrator, facing closer scrutiny, might find it advisable to bring forth afirmative evidence that any conflict did not influence its decisionmaking process….”
In light of this decision in August, the Supreme Court yesterday sent a similar ERISA case, Metropolitan Life Insurance v. Hawkins-Dean, 04-55277, 161 Fed. Appx. 684 (9th Cir. 2006) (Westlaw password required) (here is the petition for cert.) back to the Ninth Circuit for reconsideration under this new conflict of interest standard.
It will be interesting to see if the decision of the previous panel in Hawkins-Dean to overturn the judgment of the plan administrator will be upheld by the new panel in light of the new approach outlined by the Ninth Circuit in Abatie.
Hat Tip: SCOTUSBlog
Monday, November 27, 2006
Update: Here is the Ledbetter oral argument transcript from today. Here's a quote from Justice Scalia from the transcript that I think best shows the way the Court is heading in this case:
JUSTICE SCALIA: I don't really see a vast difference between a promotion and being elevated to a higher pay grade. I mean, there may be no different responsibilities but it's a single act of discrimination: "No, you're not going to move up to the next pay level." I don't see why that's different from "no, you're not going to move up to the next job."
Well, as reported in a previous post, the oral argument in the pay discrimination case of Ledbetter v. Goodyear took place today.
Here are some early reports of that argument from the AP:
Justices engaged in a lively, but inconclusive debate over how to apply a 180-day deadline for complaining about discriminatory pay decisions under Title VII of the federal Civil Rights Act of 1964.
Eight justices joined in the questioning. Justice Clarence Thomas was, customary for him, silent, but he could play a pivotal role in deciding the case. Thomas once was chairman of the Equal Employment Opportunity Commission, which is responsible for investigating workplace discrimination claims.
Applying the 180-day deadline to decisions made years ago makes no sense in a situation in which the disparity grew over time, Justice Ruth Bader Ginsburg said.
Early on, "there is no reason to think there is going to be this inequality," she argued.
But Chief Justice John Roberts was skeptical that employees could "challenge the discrimination 15 years later."
Nothing to say exactly how the court will come out based on the above, but I too think that Justice Thomas will play a decisive role in this case in finding, consistent with the Morgan decision of four years ago, that this is a discrete act of discrimination case and Goodyear should prevail. It might, however, only be a 6-3 or 5-4 decision because other Justices, like Justice Ginsburg, might see this as a case in which a disparity in employment terms grows over time, and thus does not take place on any particular day. Hat Tip: How Appealing PS
Nothing to say exactly how the court will come out based on the above, but I too think that Justice Thomas will play a decisive role in this case in finding, consistent with the Morgan decision of four years ago, that this is a discrete act of discrimination case and Goodyear should prevail. It might, however, only be a 6-3 or 5-4 decision because other Justices, like Justice Ginsburg, might see this as a case in which a disparity in employment terms grows over time, and thus does not take place on any particular day.For further commentary on this case and its importance, see this FindLaw piece by Joanna Grossman (Hofstra) and Deborah Brake (Pitt), who wrote an amicus brief in support of the plaintiff in Ledbetter.
Hat Tip: How Appealing
Belinda Smith (Sydney Law) has posted on SSRN her forthcoming piece in the Sydney Law Review entitled: Not the Baby and the Bathwater - Regulatory Reform for Equality Laws to Address Work-Family Conflict.
From the abstract:
With the Work Choices transformation of the Australian industrial relations landscape we have seen the federal government confirm that it is not willing to regulate for family-friendly worker entitlements or workplace conditions directly, instead relying upon market and social forces to deliver outcomes within a decentralised regulatory framework. If we acknowledge the current political reality that legislation and awards are not likely to be used to establish family-friendly work conditions such as part-time and flexible hours, paid parental leave and family leave, what alternative regulatory mechanisms are available?
Given the gender dimension of work-family conflict, our federal sex equality laws - Sex Discrimination Act 1984 (Cth) and Equal Opportunity for Women in the Workplace Act 1999 (Cth) - have proven to be of some use in prompting greater family-friendliness in workplaces. However, the regulatory tools offered by these laws are not up to the task. In this article, I draw on new regulatory scholarship to explain the weaknesses of our current equality laws, and then to propose a new regulatory model that holds promise for better prompting, facilitating and holding accountable corporate initiatives to establish sustainable, family-friendly work environments.
This piece makes clear that Australia is dealing with many of the same workplace flexibility issues that we are currently seeking to address here in the United States. It is always a useful exercise to consider comparative law pieces such as this one to get further insight into how we might better our own employment laws.
From her post:
In the aftermath of the Pension Protection Act of 2006, 401(k) plan sponsors are required to carefully select "fiduciary advisors", identify appropriate default investment choices for participants and comply with more rigorous federal reporting procedures. All of this could spell trouble for retirement plan fiduciaries who fail to realize that regulation, public awareness and employee angst put them in the spotlight as never before. This is especially apropos with respect to plan fees.
Join us on November 28, 2006 from 11:00 a.m. to noon (EST) for an informative and timely webinar about 401(k) plan fees - what they are, how they can affect reported performance and the fiduciary practices that address investment management fees. Click here to register. There is a small charge to cover production expenses.
JP Morgan Chase has agreed to settle a disability discrimination case for $2.2 million based on previous employment practices at Bank One, a company that it merged with back in 2004.
Apparently, although Bank One was willing to give medical leave to employees for up to six months, it had a blanket policy not to extend medical leave beyond that time period. The problem with that employment practice under the ADA is that a company is required to do an individualized assessment to not only determine if the worker is disabled for purposes of the ADA, but also whether the individual needs additional time away from work as a reasonable accommodation for his or her condition under the law (see this previous post discussing this complex issue in employee leave law).
Because Bank One just assumed that those away on medical leave for more than six months were unable to return to work because of their disabilities, the company violated one of the major tenets of the ADA: each employee must be evaluated under the ADA for relief on an individual basis.
Hat Tip: HR.BLR.com
So says this new piece in the Journal of Law and Economics and highlighted today at HR.BLR.com. According to the article:
Employers that perform criminal background checks generally hire more black workers than employers that don't conduct background checks . . .
The study found that employers that check criminal backgrounds during the hiring process are 8.4 percentage points more likely to have hired a black applicant into their most recently filled position.
"The results are consistent with the proposition that in the absence of a criminal background check, employers use race to infer past criminal activity, especially employers with a strong stated aversion to hiring ex-offenders," write Harry J. Holzer (Georgetown Public Policy Institute), Steven Raphael (University of California, Berkeley), and Michael A. Stoll (University of California, Los Angeles).
It thus seems that doing background checks is a win-win situation. Not only do such practices help to eliminate invidious discrimination from the application process and increase diversity, but such background checks, along with appropriate pre-employment screening tests, can decrease the incidence of both respondeat superior and negligent hiring or retention claims for employers.
It thus seems that doing background checks is a win-win situation. Not only do such practices help to eliminate invidious discrimination from the application process and increase diversity, but such background checks, along with appropriate pre-employment screening tests, can decrease the incidence of both respondeat superior and negligent hiring or retention claims for employers.PS
Saturday, November 25, 2006
There ought to be law. Wait, actually there is: religious prayer and preaching by teachers has long been considered a constitutional no-no at public schools (not that it actually stops schools around the region I live in from engaging in such practices).
But here is an interesting story (thanks to David Schraub at The Debate Link for the pointer) about a New Jersey public school student who accused his high school social studies teacher of preaching religion in class. As David point outs, the teacher denied the accusation and the school was ready to believe him until the student produced a tape of the whole interchange (via the Star-Ledger):
Junior Matthew LaClair, 16, said history teacher David Paszkiewicz, who is also a Baptist preacher in town, spent the first week of class lecturing students more about heaven and hell than the colonies and the Constitution.
LaClair said Paszkiewicz told students that if they didn't accept Jesus, "you belong in hell." He also dismissed as unscientific the theories of evolution and the "Big Bang."
Rather than the focus of this story where it should be - on the teacher who violated the Establishment Clause and then out-and-out lied about it - the teacher in question is likely, as another commentator points out in David's post, to gain hero status among certain groups and become a leading speaker on the evils of secular education and so-called "secular humanism."
It all just makes you want to throw up your hands and ask when will such teachers stop thumbing their noses at the Constitution and when will schools start taking the concerns of their students more seriously (sans taping).
Hoping to make a dramatic point by walking out of work during one of the busiest travel days of the year at one of the busiest airports in the country, the Engineers and Architects Association of Los Angeare is planning to have 200 LAX employees walk out of work today. As this UPI report explains:
A disgruntled union plans a one-day walkout at Los Angeles International Airport Sunday, one of the year's busiest travel days.
The Engineers and Architects Association, which represents more than 7,500 city engineers, architects and other professionals, said it was planning small, targeted strikes at different city departments on different days in the weeks ahead, the Los Angeles Times reported Friday. About 200 union members work at LAX.
It does not appear that the union has in the past had the leverage to make that much of an impact on city services, as a similar city-wide two-day workplace action in August did not obtain for the union the wage increases it sought. Indeed, the union has been working without a contract for two years at this point.
One of the unions in this country which has been able to sustain substantial power throughout even these lean years for the labor movement is 1199 United Healthcare Workers East. The union has a long, well-respected history, including being referred to by Martin Luther King Jr. at one point as "the conscience of the labor movement."
As with everywhere else in the country, these are tough times for hospitals and their workers in the State of New York. This article in today's New York Times highlights some of the challenges that the union and Governor-Elect Spitzer have to face in making health care more affordable and efficient in the state. The union is hoping that it and the new governor are on the same page, but as the article points out, there is a lot that remains to be seen:
Now the governor-elect and the union, led by its longtime president, Dennis Rivera, are on something of a collision course as Mr. Spitzer seeks to overhaul the state’s costly health care system, which is sure to include the closing of several hospitals.
[T]he union is facing a new governor who must grapple with a $2.5 billion deficit next year, one who has promised to increase education financing by billions of dollars, cut the number of uninsured New Yorkers in half and reduce property taxes by $6 billion over three years.
To help pay for all of this, Mr. Spitzer has said he will broadly overhaul the state’s bloated health care system, which soaks up more than a quarter of all state spending; his various proposals could result in cuts of more than $1 billion annually in state and federal funds.
The first flashpoint will come Tuesday, when a special commission appointed by Governor Pataki is to make public its recommendations on hospital closings.
This is one of those stories that definitely has a stay-tuned flavor to it. It will be more than just a little bit interesting to see how this powerful union and the Democratic governor will work together to reform the health care system, while at the same time protecting the rights of hospital and other health-care workers throughout the state.
Here's a funny piece from the October Issue of Workforce Magazine Online about how television characters can help one understand the complexities and functional nature of the overtime exemptions under the Fair Labor Standards Act (FLSA).
It comes as a big surprise to many employers when they learn that they are not entirely free to decide which of their employees should be paid set salaries and which should receive wages and overtime. Those decisions are governed by complicated laws that hinge on the details of each individual employee.
The best way to explain the rules is by pointing to specific employees and then describing exactly what about their jobs requires them to be paid salary or overtime. The problem is common frames of reference: Where can you find employees who will be known and recognized beyond their own provincial workplaces?
The answer, of course, is television. Homer Simpson, MacGyver, Dwight Schrute (the weird guy from NBC’s The Office) and other TV characters are better teachers of overtime exemption rules than most wage-and-hour attorneys.
And here's one example from the article:
Executive characters: exempt
Gruff newsman Lou Grant of The Mary Tyler Moore Show is arguably the best example of an exempt manager because that is all you ever saw him doing: managing the plucky reporters of WJM-TV in Minneapolis. He was the quintessential boss, his authority absolute and unquestioned. He also never got his hands dirty doing day-to-day chores that he had employees to take care of, meaning that he was never in danger of spending less than half his time managing.
Enjoy the rest of this highly entertaining, yet informative, article.
A British Airways employee who was required to take off her cross necklace when she went to work has caused a firestorm across England. This is from the Daily Mail:
British Airways backed down over its ban on workers wearing the cross after a hurricane of criticism.
Airline chief Willie Walsh ordered a rethink of the rule that barred check-in worker Nadia Eweida from wearing a tiny cross at work.
The airline had faced four days of angry condemnation from an overwhelming alliance of Cabinet ministers, 100 MPs, 20 Church of England bishops and, finally, the Archbishop of Canterbury. Dr Rowan Williams called its stance 'deeply offensive' and threatened to sell the Church of England's £6.6million holding of BA shares.
The airline had insisted the cross was covered by rules which say jewellery must be worn out of sight, beneath a uniform. But Mr Walsh said it was clear the policy had to change.
Quite a reaction. I am not sure the same thing would happen in this country as far as the extent of the public protest.
However, if this type of ban were instituted by an employer in the United States, it would be fairly difficult for them to show that a religious accommodation of the cross wearing was not possible or that allowing the cross to be worn would cause an undue hardship to their operations.
Of course, there may be a few business that have strict uniform or other appearance rules that may be able to withstand challenge as long as the dress policy were uniformly-applied and it could be shown that it was important to an employer's operation to have such a rule.
Friday, November 24, 2006
HR.BLR.com has this story today about how the Department of Health and Human Services (HHS) is asking employers to voluntarily commit to meeting four goals in the area of providing more information on health care costs and quality of services:
HHS Secretary Mike Leavitt says fundamental information about healthcare quality and costs of services is largely unavailable today to consumers, to payers, and to providers alike. Without this information, it is difficult to make informed choices and seek out the best quality at the most affordable price, which contributes to higher healthcare costs overall, he says.
Leavitt emphasized that the initiative is voluntary. Employers that agree to the four goals will be encouraged to sign a support statement as part of a package of materials that is being made available to employers and other healthcare stakeholders. The four cornerstones are:
- Encourage Adoption of Health Information Technology Standards by supporting interoperable health information systems and products in order to enable the availability and secure exchange of healthcare information.
- Increase Transparency in Quality by implementing, or asking those with which supporters contract to implement, programs to measure the quality of services provided by doctors, hospitals, and other healthcare providers and making this information available to health-plan enrollees.
- Increase Transparency in Pricing by implementing, or asking those with which supporters contract to implement, programs to make available to health-plan enrollees the overall cost or price of their care.
- Promote Quality and Efficiency of Care by offering incentives that encourage and facilitate high-quality and cost-effective health care.
All this seems consistent with Health Savings Accounts (HSAs) and the consumer-driven model of health care that this administration prefers. Such a voluntary initiative will likely not do much for solving this country's health care crisis, but there is certainly nothing wrong about bringing some transparency to a system that often seems inscrutable to employees.
The only question now is whether there is enough incentive for employers to comply with this program.
Thanks (I think) to Diane Pfadenhauer of Strategic HR Lawyer for bringing to our attention a truly important survey about the workplace: which workplaces have the most germs?
Now, I am no rocket science on such matters, but it strikes me as a bit odd that doctor's workplaces only come in 5th on the list generated by WebMd and sponsored by the Clorox company, while accountants are second. They must be talking about actual offices and surfaces therein, and not where they actually perform their jobs (can't say I have seen an accountant or teacher lately with one of those Michael Jackson masks on).
In any event, lawyers come in 9th and Diane tells us that the major culprits for germs are phone, desks, computer keyboards, and computer mouses. I would have thought that just the ventilation systems make some larger workplaces especially unhealthy in this regard.
In any event, next time you visit your accountant, get your surgical mask ready.