Workplace Prof Blog

Domino's Pizza Franchisee Accused of Slavery

The BBC reports that a Domino's Pizza franchisee in Derby, England is being accused of holding eight migrant Hungarian workers in conditions of "modern-day slavery."  T&G Unite -- a large British trade union -- alleged that the the franchisee took so many deductions from the workers' paychecks that the workers were owing the franchisee money, and that the franchisee evicted the workers from their apartment when they were fired.  Steven Hemsley, the franchisor's CEO, promised an investigation.  For more, see the BBC story Domino's workers in 'slavery' row; hat tip to pjhlaw.

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Northwest Airlines Gets Grounded

Northwest Airlines, which of course used bankruptcy last year to cut wages and benefits and increase working hours of its pilots and other employees, has been plagued by month-end pilot "absenteeism," causing lots of canceled flights.  The airline says pilots just aren't showing up.  The union says Northwest is reaping what it sowed -- there just aren't enough pilots now to cover the flights.  For more, see yesterday's Wall Street Journal article (subscription required) or today's report on NPR's Morning Edition.

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Hart on The Possibility of Avoiding Discrimination: Considering Compliance and Liability

Melissa Hart (Colorado) has posted on SSRN her piece in the Connecticut Law Review: The Possibility of Avoiding Discrimination: Considering Compliance and Liability.

Here's the abstract:

The gender discrimination class action Dukes v. Wal-Mart, whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company's excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to distinguish employers who are part of the problem from those who are not? This Article argues that, given the real possibility of judicial and public resistance to these suits, there is a serious need for some articulation of what employer practices would be sufficient to demonstrate legal compliance sufficient to forestall litigation like Dukes. Past litigation, the evaluations of human resources experts, and Supreme Court interpretations of the requirements of federal antidiscrimination law all provide some guidance as to employer policies that could satisfy these compliance efforts. But a growing body of empirical research suggests that workplace programs designed for compliance do not necessarily improve circumstances for women and minorities. Any discussion of compliance must grapple with this problem. This Article argues that employers, and those offering them guidance, must develop strategies for compliance that will in fact remove barriers to equality, but that litigation like Dukes may not be appropriate to target employers who have made substantial compliance efforts, even if those efforts have not eliminated inequalities.

Melissa is at the cutting-edge of employment discrimination class action scholarship.  Check out this piece for another insightful piece in this area.

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Bush Threatens Veto of Ledbetter Bill

No surprise here:

It was probably just a matter of when, not if, President Bush would threaten to veto the Lilly Ledbetter Fair Pay Act. The when came this afternoon as the Bush administration announced its intentions to say “no” to strengthening equal pay laws.

Back to your regularly scheduled program.

Update (from Adjunct Prof Blog): "On July 30, 2007, the House approved H. R. 2831 by a vote of 215-187 which amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes."

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Recently Published Scholarship

Surveys

• Peter Reed Corbin (left) & John E. Duvall (second), Eleventh Circuit Survey: Employment Discrimination, 58 Mercer L. Rev. 1187 (2007).
• W. Christopher Arbery (third) & Valerie N. Njiiri (fourth), Eleventh Circuit Survey: Labor and Employment, 58 Mercer L. Rev. 1295 (2007).
• John Sanchez, 2005-06 Survey of Florida Public Employment Law, 31 Nova L. Rev. 127 (2006).

Comments & Notes

• Matthew Bernt, Should Public Employers Be Forced To Warn Their Employees of Their Immunity and Duty to Answer Questions before Demanding Answers and Taking Adverse Action?, 56 Catholic U. L. Rev. 1037 (2007).
• Keron A. Wright, Stuck on You: The Inability of an Ex-Spouse to Waive Rights Under an ERISA Pension Plan, 45 Washburn L.J. 687 (2006).
• Mike J. Wyatt, Buy Out or Get Out: Why Covenants Not to Compete in Surgeon Employment Contracts Are Truly Bad Medicine, 45 Washburn L.J. 687 (2006).

Congratulations to Paul Mollica . . .

. . . on three years of blogging over at Daily Developments in EEO Law!

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Top-5 Employment SSRN Downloads

1. Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom (252).
2. Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (69).
3. D. Aaron Lacy, The Most Endangered Title VII Plaintiff?: African-American Males and Intersectionality Claims (66).
4. Mark K. Moller, The Anti-Constitutional Culture of Class Action Law (41).
5. Michael H. LeRoy (photo above), Getting Nothing for Something: When Women Prevail in Employment Arbitration Awards (33).

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Top-5 Labor SSRN Downloads

1. Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (69).
2. Timothy A. Canova, Campaign Finance: Iron Triangles and the Decline of American Political Discourse (33).
3. Colin Fenwick (photo above), Workers' Human Rights in Australia (25).
4. Ingrid Landau, Richard Mitchell, Ann O'Connell, & Ian Ramsay, Employee Share Ownership in Australia: Theory, Evidence, Current Practice and Regulation (25).

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Family Leave and the Law

This weekend's New York Times Magazine has a feature story by Eyal Press on family leave in the U.S.  The story is too long to properly summarize, but it discusses topics such as sex discrimination lawsuits under Title VII lawsuits based on stereotypical views of family obligations and the EEOC's recent guidance on that issue.  The story is well worth a read, in part for several of real-life examples which, even to someone who reads about this area regularly, were eye-popping.  Particular note should be made of the story's focus on Joan Williams (Hastings), who has been a major force in this area.  Press describes Williams as:

. . . approaching rock-star status among the small but growing network of lawyers and scholars who litigate or study family-responsibility discrimination cases. . . .  Williams has been racing across the country giving such speeches since 2000, the year her book “Unbending Gender” appeared. In the book, which set in motion the legal trend that now consumes much of her time, Williams argued that the growing tension between work and family was not simply a product of economic necessity. It stemmed, rather, from a marketplace structured around a increasingly outdated masculine norm: the “ideal worker” who can work full time for an entire career while enjoying “immunity from family work.” At a time when both adults in most families had come to participate in the labor force, Williams argued that this standard was unrealistic, especially for women, who remained the primary caregivers in most households. . . .

Williams [said that] she wasn’t sure when she wrote the book what the best remedy was. One possibility was legislation — subsidized child care, generous parental-leave policies — of the sort many European countries have. Another was for employees to take legal action, an idea she described in the book’s most provocative chapter. To show how discrimination can harm caregivers, Williams told the story of a lawyer with sterling performance reviews who was passed over for a promotion because she was a mother; management had assumed she wouldn’t be interested and promoted an unmarried woman instead. Even though the position was not given to a man, a court agreed the firm’s action might constitute sex discrimination, not least because numerous fathers had received such promotions. Negative assumptions about the capabilities of women with children pervade the marketplace, Williams averred, and can violate Title VII of the Civil Rights Act even when employers insist their actions are not motivated by sexism.

“Unbending Gender” struck a nerve — soon after its publication, Williams found herself fielding “a zillion invitations to speak” — but its author admits she had “no idea” whether the legal theory she had sketched out might catch on. There were plenty of skeptics, which is not surprising. Unlike being black or female, after all, becoming a parent is a choice, one that often limits an employee’s availability. As she traveled across the country, Williams heard this frequently from feminists convinced that courts would side with businesses in such disputes. But she heard something different from the lawyers she met, who seemed equally certain jurors would sympathize with workers punished simply for trying to be responsible caregivers. Meanwhile, with each passing day, more lawsuits kept being filed. Williams soon established the Center for WorkLife Law, which emerged as the place to go to learn more about the subject — not only for scholars and journalists but also for employees, who started calling its hot line to find out how they, too, might file a claim.

Rock-star, indeed. 

-JH

Monitoring Compliance with the ILO

Laurence Helfer (Vanderbilt) has just posted on SSRN his article (forthcoming Law & Contemp. Problems) Monitoring Compliance with Un-Ratified Treaties: The ILO Experience.  Here's the abstract:

This article, part of an interdisciplinary symposium on international delegation, analyzes grants of authority to international organizations (IOs) to monitor compliance with un-ratified treaties and non-binding norms and standards.
 
It begins with a historical review of the different ways in which officials and review bodies of the International Labor Organization (ILO) to monitor compliance with treaties and recommendations that the organization has adopted but that a member state has not ratified or otherwise accepted as legally binding. The ILO membership has repeatedly expanded these monitoring powers since the organization's founding in 1919. It has done so both informally (by allowing ILO officials to expand the scope of the initial delegation that established the organization) and formally (by amending the ILO constitution to codify and further enlarge these informal expansions of the organization's monitoring authority). Taken together, these developments challenge the conventional wisdom that the delegation of authority to the ILO involves only modest sovereignty costs.
 
The article then uses the ILO's history to emphasize the importance of delegations that authorize international bodies to monitor compliance with nonbinding international rules. Such delegations often arise and thrive outside of the formal channels of authority. This makes it essential for scholars to look beyond treaty texts and institutional design features to consider how power is actually exercised within IOs and how the costs and benefits of international delegations change over time. Finally, the article considers what insights the ILO offers for delegations to other IOs. It argues that monitoring compliance with unconsented-to legal rules is an alternative institutional response to a problem that many IOs confront: how to ensure that all states affected by a cooperation problem participate in the resolution of that problem rather than free riding on the efforts of other countries.

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Top-5 Benefits/Compensation/Pension SSRN Downloads

1. Rene B. Adams & Daniel Ferreira, One Share, One Vote: The Empirical Evidence (478).
2. Jason S. Scott, Longevity Annuity: An Annuity for Everyone? (404).
3. Matthew D. Hutcheson, Retirement Plan Disclosure: Ethical Principles and Legal Obligations (174).
4. Jeffrey N. Gordon (photo above), The 'Prudent Retiree Rule': What to Do When Retirement Security Is Impossible? (69).
5. Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (68).

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Top-5 International Employment & Labor Law SSRN Downloads

1. Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective (68).
2. Colin Fenwick, Workers' Human Rights in Australia (25).
3. Lorand Bartels, Social Issues in Regional Trade Agreements: Labour, Environment and Human Rights (25).
4. Harrie A.A. Verbon (photo above), Migrating Football Players, Transfer Fees and Migration Controls (20).

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The 9th Annual National Law Students Workers Rights Conference . . .

. . . , sponsored by the Peggy Browning Fund, will be held October 19-20, 2007.  Watch the fund's website for soon-to-be-posted details.

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Reminder: Registration Deadline for Labor/Employment Conference is Approaching

Monday is the deadline for registering for the Second Annual Colloquium on Current Scholarship in Labor/Employment Law, which will be held Sept. 28-29 at U. Denver and U. Colorado.  I didn't make it last year and wish I had; I'll be attending and presenting this year.  Scott Moss reports that registrations are way up from last year, which itself was quite an impressive collection of scholars.  Scott also requests:

Please pass this information on to others, especially those who may be new to, or completely outside, legal academia.  Last year, it was nice that word of the event somehow reached a lot of aspiring profs, non-profs, and others who really needed the work-in-progress audience more than those of us who already have been prof'ing for a few years. I hope we can draw a similar amount of new blood to this year's event.

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ERISA Preemption Part Trois: The San Francisco Story

In light of the success in Maryland and Suffolk County, New York, it is probably little wonder that a similar fair share health care bill is now being challenged under ERISA preemption principles in San Francisco (indeed, I predicted as much here). But there seems to be a new argument being emphasized in this litigation.

Law.com has the story:

Now the San Francisco City Attorney's Office is in federal court defending a law that's intended to bring about universal health care coverage, and its lawyers insist they have found a way to overcome federal pre-emption.

If U.S. District Judge Jeffrey White of the Northern District of California agrees and grants a summary judgment motion the city filed last week, some employment lawyers say the case would put San Francisco at the forefront of a movement to shift more of the nation's spiraling health care costs onto the shoulders of business . . . .

Though San Francisco's law is based on an employer-funded concept that's similar to those in Maryland and New York, Vince Chhabria, a deputy city attorney who's defending San Francisco's law in federal court, said the city's alternative is "a totally different animal."

He argues that the alternative options in the Maryland and New York laws fell short because they required businesses to pay the government without the government directly giving them anything in return.

Under the San Francisco law, employers who don't offer private insurance would still have to pay an equivalent amount to the government. But their employees would get discounted health benefits provided by the city in exchange.

An interesting argument that I did not foresee being brought up.  However, I am still skeptical that this "better alternative" approach will allow the law to survive ERISA preemption.  At the end of the day, the law still interferes too much with the administration and management of ERISA health plans under the current standards.  A mandate is a mandate.

The case is Golden Gate Restaurant Association v. San Francisco, 06-6997.

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Worker Fired for Text Messaging ... 38,000 Times!

OK, employers can give a little latitiude for today's younger employees who are text message obsessed, right? But I don't think anyone can blame this Polish employer for saying enough is enough (via Yahoo! News and AP):

A Polish bus driver has been fired for sending 38,000 text messages on his company cell phone in a losing effort to win contest jackpot, a spokesman said Thursday.

Leszek Wojcik, a bus driver in the northwestern Polish city of Slupsk, ran up a tab of some 94,000 zlotys ($34,000) with his text messages while trying to win a 100,000-zloty ($36,000) SMS contest that ended June 30, Slupsk city transport spokesman Hubert Boba told The Associated Press.

Boba said a city bus drivers' monthly company phone bill is supposed to be limited to 15 zlotys ($5).

Wojcik sent an average of 1,200 SMS text messages a day, each costing 2.40 zlotys ($0.86), on his work cell phone.

I think I'll just let this story speak for itself.

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Fee Disclosure Bill for 401(k) Plans Introduced in Congress

PlanSponsor.com is reporting this morning that Rep. George Miller is introducing a bill which would require mandatory disclosure of mutual fund fees to 401(k) participants.  Here are the details:

Congressman George Miller (D-California) has introduced the 401(k) Fair Disclosure for Retirement Security Act of 2007 "to ensure that American workers have clear and complete information about fees that could be cutting deeply into their 401(k)-style retirement savings," according to a press release. The legislation would require plan administrators to disclose, in clear and simple terms, all fees charged to plan participants each year; call for more detailed information on investment strategies, risks, and returns when participants sign up for their company's 401(k); require the inclusion of a least one “lower-cost, balanced index fund” in the plan's menu; ensure that all fees and conflicts of interest are disclosed annually to plan sponsors; and enhance the Department of Labor’s oversight of 401(k) plans.

This development can hardly be considered surprising given the attention that the fee issue has received over the past couple years. More information about the bill is available here.

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Texas AG Sues for Breach of Right to Work Law

The BNA Daily Labor Report (subscription required) this morning reports that the Texas Attorney General has filed a complaint against two companies for allegedly forcing employees to join a union or pay dues in violation of the state's right to work laws.  State right to work laws are expressly allowed under the NLRA and permit nonmember employees not to have support the union even through agency fees.

BNA further reports:

What drew the state into the cases, Kelley said, was a determination last month by a federal administrative law judge that the state had an interest and jurisdiction in the El Paso case where an employee was suspended for refusing to pay union dues because the facility was not an "exclusive federal enclave." . . . .

"The law guarantees important right-to-work protections for Texas workers," [Attorney General] Abbott said in nearly identical statements announcing the suits. "Texans have the right to work without having to join a labor union or pay union dues. The Office of the Attorney General will aggressively enforce Texas' right-to-work laws and will take all necessary measures to protect workers' freedom from compulsory union membership."

I guess this going to be a day of unusuals.  The cases are Texas v. Deco-Akal JV, Tex. Dist. Ct., No. 2007-3372, complaint filed 7/24/07; Texas v. Asset Prot. & Sec. Servs. L.P., Tex. Dist. Ct., No. 073961-B, complaint filed 7/24/07. 

More information about the cases is available from the Houston Chronicle.

Hat Tip:  Hank Leland

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Professors Locked Out in Canada

In a rather unusual turn of events, Bishop's University in Quebec has locked out its professors. The Canadian Association of University Teachers reports:

The employer at Bishop's University has walked away from the bargaining table and announced a lock-out of all unionized academic and non-academic staff.

Negotiators for Bishop's University Corporation and the Association of Professors of Bishop's University (APBU) began round-the-clock negotiations on Sunday, July 22, and, after considerable progress was made at all tables, the union prepared a new proposal for the employer.

Before allowing the union to table the proposal, the employer walked away from the bargaining table and announced the lock out of all unionized employees, non-academic and academic, beginning at 12:01 a.m. July 26.

For more information about the lock out, you can visit the union's web page.

Hat Tip:  Ravi Malhotra

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Which Paul Just Turned 50?

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