Wednesday, October 31, 2007
Breaking labor/political news: Hillary Clinton has just received an endorsement from AFSCME. Given other major international unions' reluctance to make such an early pick, this is a big deal (and crushing to Edwards, who has courted unions hard for the last couple years). As reported by the New York Times:
Gaining one of the biggest endorsements that organized labor has to offer, Senator Hillary Rodham Clinton received the endorsement of the American Federation of State, County and Municipal Employees, a union official said today. The union is one of the nation’s largest, with 1.4 million members, and is especially powerful in Iowa, where it has 30,000 members, making it a major force in that state’s Democratic caucus. . . . .
The federation of state, county and municipal employees plans to spend $60 million in the current campaign cycle on the presidential, congressional and state races, second only to the Service Employees International Union. Moreover, the union, known as Afscme, plans to mobilize at least 40,000 volunteers in the campaign. . . .
One official who attended today’s board meeting said 23 board members had voted to endorse Mrs. Clinton while 10 voted for other candidates or for no endorsement. At the meeting several officials argued against backing Mrs. Clinton, saying that she would have trouble beating a Republican in November 2008 because her negatives are so high. As a result of the Afscme endorsement, its members will be battling on behalf of Mrs. Clinton in Iowa against members of several other unions — the steelworkers, the carpenters and several service employee locals — that have endorsed Mr. Edwards.
Mr. Edwards is also getting some good news today – he is receiving the endorsement of the service employees’ state council in New Hampshire, even though former President Bill Clinton had personally intervened in his wife’s behalf. Because the service employees have 10,000 members in New Hampshire, that should be a significant boost for Mr. Edwards. in the state that has the first primary.
Marty Malin (that's Lou Jackson at left, not Marty) writes once again to remind us of the Louis Jackson Memorial National Student Writing Competition in
Employment and Labor Law, administered by Chicago-Kent College of Law. As in the
past, students may submit essays of up to 35 pages in length. Essays will be
blind judged by a panel of five law professors. Neither Jackson Lewis nor
Chicago-Kent have any say in the selection of winning essays. Here's a complete description.
Looks like the Writers Guild will be on strike shortly. We haven't covered it here at Workplace Prof Blog because it's been in the mainstream media plenty enough.
Garnering less national attention is the UFCW's impending strike of Kroger (see today's story in the Cincinnati Enquirer, which kindly quotes yours truly). It's a local dispute (Cincinnati, Dayton, and Northern Kentucky), so a strike won't cripple Kroger financially. But Cincinnati is Kroger's home, and the company can ill-afford to lose market share here to the likes of Wal-Mart. As Michael Carrell points out, the Kroger-UFCW dispute is shaping up to be a classic modern power match: management threatens to hire replacements and seeks public support versus a union threat of a long costly strike ending in lost market share.
Brian Kanner, a student at Emory Law, has just posted on SSRN his article Reservists Are Like Pregnant Women: A Fertile Battleground for a Reinterpretation of USERRA. Here's an excerpt from the abstract:
The article examines the Department of Labor's ("DOL") newly issued regulations of the Uniformed Services Employment and Reemployment Act of 1994—the act that guarantees workplace non-discrimination and reemployment rights to our military reservists. Under the regulations, reservists are given non-seniority rights [e.g., the employer is required to continue fo pay for medical benefits] only if the employer offers them to similarly situated non-military employees on a comparable non-military leave. Making comparisons to pregnant women subject to policies formed for a male-centric workplace, I argue that the assessment for determining a reservist's non-seniority rights is inherently disingenuous: what employee is truly similarly situated to a reservist called to duty and what non-military leave is truly comparable to the unpredictable military leave?
My article argues that when forced to find some group that is similarly situated to reservists on a comparable leave, pregnant women on leave are the most similarly situated, as a group, and their leave is most comparable. Therefore, reemployed reservists should receive all rights and benefits that an employer offers to pregnant women.
Makes sense to me. USERRA is a sleeping giant -- I suspect we'll be seeing a lot of it in the near future.
Who am I to ignore a request from such an eminent blogger as Belle Lettre? She brings to my attention an article in the New York Times by Adam Liptak and wonders what its employment discrimination ramifications are.
How abou two posts, Belle? Rick writes below about an Adam Liptak article in which law students are grading law firms based on diversity. She wants my expert reaction.
Now, my first reaction is similar to that of eric over at the Debris Blog:
So students from elite law schools will know at which firms woman, people of color, and LBGT people have the best opportunities to make bucketloads of money working on behalf of corporate power.
Taking Belle's question a little less cynically, I am not sure what the employment discrimination issues are. The firms may respond by seeking to hire more diversity candidates, but as long as they don't have quotas and take other factors into consideration when hiring, there shouldn't be an employment discrimination issue. Of course, over-eager firms may put in place a de facto quota and find itself being sued under a reverse discrimination theory.
The students are handing out “diversity report cards” to the big law firms, ranking them by how many female, minority and gay lawyers they have.
“Many of the firms have atrocious, appalling records on diversity,” said Michele Landis Dauber, a law professor at Stanford and the adviser for the project, called Building a Better Legal Profession. The rankings are at www.betterlegalprofession.org.
In New York, Cleary Gottlieb Steen & Hamilton got the top grade, an A-minus. At Cleary, the project says, 48.8 percent of the associates are women, 8.7 percent are black, 8.3 percent are Hispanic and 4.5 percent are openly gay.
Herrick, Feinstein, by contrast, got an F. Its numbers: 37.7 percent women, 4.9 percent black, 1.6 percent Hispanics, and no openly gay people.
... The numbers were provided to a central clearinghouse by the firms themselves. “Our process is simple,” the student group said in explaining its methodology. “Cut, paste and rank.” Firms in the top fifth received A’s, in the second fifth B’s, and so on. Overall grades were arrived at by averaging grades for partners and associates in five categories: women, blacks, Hispanics, Asians and gay people.
At least around here (southern Ohio and Kentucky), most big-and-medium-sized firms are sold on diversity. It's not out of altruism -- it's because their clients demand it. But the firms have a difficult time recruiting minority lawyers if the law schools aren't producing enough of them and the bar exams further reduce the pool disproportionately. And law schools have a difficult time recruiting minority law students if the colleges aren't producing enough of them and the LSAT further reduces the pool disproportionately.. And so on and so on. That's why I'm a huge supporter of pipeline projects like Wingspread -- they won't solve the underlying problems, but they at least can help address some of the symptoms.
Tuesday, October 30, 2007
You know, I teach the General Duty Clause of OSHA every year in Employment Law class and not once did I consider that this amorphous provision may preempts state laws which prevent employers from banning guns from work.
But I'm glad someone thought about it. From Society of Human Resources Management (SHRM):
In a long-awaited decision, a federal judge of the U.S. District Court in Oklahoma sided with SHRM in finding that a workplace weapons bill passed by the Oklahoma legislature in 2004 (and amended in 2005), which prohibits employers from establishing policies banning employees from bringing weapons onto company property, is pre-empted by the federal Occupational Safety and Health Act's (OSHA) 'general duty' clause.
More specifically, the judge held:
[T]he Amendments [the Oklahoma weapons laws] conflict with and are preempted by the OSH Act, which requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives.
The case is ConocoPhillips v. Henry, 2007 WL 2908879 (N.D. Okla. 2007) (Westlaw Subscription required).
Amir Efrati writes in today's Wall Street Journal about law student strategies for finding jobs and minimizing debt. He points out that while demand (and salaries) at big firms is robust, job growth in other legal fields has stagnated over the past 20 years. One of his suggestions is to start at an in-state public law school, then look for transfer opportunities to the elite schools that feed into the upper-echelon law firms. On the practice that many top-tier schools seem to be taking of padding their USNWR ranking by cherry-picking gobs of second-year transfer students, see Bill Henderson's post on Empirical Legal Studies Blog.
Monday, October 29, 2007
It will come as no surprise that the SEIU has been in the midst of ramping up its political machinery for the 2008 election. Steven Greenhouse reports in the New York Times:
The union movement, led by the service employees and the A.F.L.-C.I.O. has been straining to increase labor’s power after decades of membership decline and efforts by Republicans to win over workers through appeals on national security and social issues.
Within labor, the S.E.I.U. president, Andy Stern, has been especially active in trying to maintain influence. While he has a reputation as divisive — he orchestrated a split with the A.F.L.-C.I.O. in 2005 that some analysts say has set back labor’s efforts to keep a strong voice in politics — he has made his union the nation’s fastest growing over the past decade, and his focus on politics has led the Democratic presidential candidates to court the S.E.I.U. endorsement aggressively.
After the union said it would not consider endorsing anyone who did not put forward a plan for universal health coverage, all the leading Democratic candidates produced one. When it demanded that the candidates spend a day in the shoes of a worker, Mr. Edwards, Mr. Obama and Mrs. Clinton did so, all spending a day with a health care worker. . . .
The union is expected to collect $40 million for its political action committee, which was the largest in the 2006 campaign. It plans to spend $30 million more in internal funds for getting out the vote and shining a spotlight on lawmakers who have helped thwart its agenda on national issues like expanding the State Child Health Insurance Program. For the first time, officials say, the union plans to spend as much on House and Senate races as on the presidential one. . . . Union officials say they will help Democratic candidates for governor in Indiana, Missouri, North Carolina and Washington. And in a move that could make life harder for Democratic incumbents who do not stand by the union on the issues it considers most important, Mr. Stern and his team say they will consider backing primary challengers who are more in line with the union’s agenda.
The union is known for mobilizing its members far more than other labor groups, with Mr. Stern predicting that 100,000 members will work as campaign volunteers next year. . . . Mr. Stern spends much of his week on politics, engaging in strategy talks at the union’s Washington headquarters, discussing legislation in Congress, conversing with local leaders about what is happening around the country and giving pep talks to the rank and file about the importance of the campaign.
Whenever I'm asked whether unions are still relevant (which seems to be a regular occurrence), politics is always one of the first things out of my mouth, as they still hold considerable sway with candidates and can make a significant impact on elections. That they're particularly energized this cycle is no wonder. It seems like half of our blog entries this past year have decried one anti-employee development after another. From unions' perspective, some of those problems represent longer-term projects, like the make-up of the judiciary. But others represent near-term possibilities, such as getting a majority on the NLRB and other agencies. If a Democrat does get in the White House, it will be with labor's help and expect to see the favor returned very quickly. If you think the Employee Free Choice Act made a big splash, wait and see what will happen if the Democrats sweep.
- Ruth Colker, The Mythic 43 Million Americans with Disabilities, 49 Wm. & Mary L. Rev. 1 (2007).
- Richard E. Moberly, Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win, 49 Wm. & Mary L. Rev. 65 (2007).
- Edward A. Zelinsky, The New Massachusetts Health Law: Preemption and Experimentation, 49 Wm. & Mary L. Rev. 229 (2007).
- Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745 (2007).
- Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 Vand. L. Rev. 849 (2007).
Surveys of Employment Law
- Illinois: Debra Stegall, Marueen R. De Armond, & Nathaniel E. Strickler, in 31 S. Il. U. L.J. 859 (2007).
- Texas: Bryan P. Neal, Stephen F. Fink, & Elizabeth A. Schartz, in 60 SMU L. Rev. 941 (2007).
Comments & Notes
- Sarabeth A. Rayho, Divorcees Turn About in Their Graves as Ex-Spouses Cash In: Codified Constructive Trusts Ensure an Equitable Result Regarding ERISA-Governed Employee Benefit Plans, 106 Mich. L. Rev. 373 (2007).
We just covered the child labor provisions of the Fair Labor Standards Act in Employment Law last week, so it seems appropriate to point out that American employers must keep close track of who is supplying their materials internationally to avoid being complicit with those who use child labor (via CNN.com):
The president of Gap North America says a subcontractor accused of using child labor to sew Gap clothes in India has been fired and the Gap will not sell clothes made in the New Delhi sweatshop.
"It's deeply, deeply disturbing to all of us," Gap President Marka Hansen said after watching video of the children at work. "I feel violated and I feel very upset and angry with our vendor and the subcontractor who made this very, very, very unwise decision."
Hansen blamed the alleged abuse on an unauthorized subcontractor for one of its Indian vendors and said the subcontractor's relationship with the Gap had been "terminated."
Here is the original investigative report from The Observer in the UK.
Kudos to take Gap for taking strong and immediate action. Apparently, this isn't the first time either: "In 2006, Gap Inc. ceased business with 23 factories due to code violations. We have 90 people located around the world whose job is to ensure compliance with our Code of Vendor Conduct."
Let's hope more employers that hire international contractors take the same proactive approach.
Hat Tip: Hank Leland
And I'm not using the term "monkeys" figuratively here. From FoxNews.com:
Kenyan officials are not sure how to handle a troop of rude monkeys that's been making lewd gestures at women, London's Daily Telegraph reports.
"Can the [tourism] minister deploy game rangers ... to deal with the monkey menace?" pleaded local representative Paul Muite in Kenya's national parliament last month, to accompanying laughter. "These creatures have clearly shown that they have no respect for women." . . . .Residents of the Kabete region south of the capital, Nairobi, say women harvesting crops have taken to dressing as men to avoid being bothered by the perverted primates.
Somehow, I don't think sexual harassment training is going to do the trick, so cross-dressing may be the only answer for this unique form of cross-species harassment. More seriously, the fact that these monkeys can tell the difference between men and women and then determine their behavior is interesting. Unless they are just imitating human behaviors they have witnessed, does this give us some important insight into the natural tendencies of these animals and the relationship between the sexes? PS
Somehow, I don't think sexual harassment training is going to do the trick, so cross-dressing may be the only answer for this unique form of cross-species harassment.
More seriously, the fact that these monkeys can tell the difference between men and women and then determine their behavior is interesting. Unless they are just imitating human behaviors they have witnessed, does this give us some important insight into the natural tendencies of these animals and the relationship between the sexes?
Kenneth Casebeer (Miami) has posted on SSRN his forthcoming piece: Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami.
Here's the abstract:
This paper is about a historic strike of service workers at the University of Miami in 2006. Section I narrates the strike from the perspective of the workers, low wage immigrant workers in a market organized by a large labor contractor leased to a large corporate enduser. Section II analyzes whether joint employer status under National Labor Relations Act should be found in these market circumstances, and suggests changes in the statute and interpretive doctrines to make effective collective bargaining feasible in such labor markets. Section III shows how the university and the workers developed substantially different legal consciousness of the strike.
Sounds like a very timely paper on a recent event that captured the labor law community's attention.
The Defense Department is trying to get Congress to back away from proposed regulations requiring detailed reports from defense contractors that list current employees who worked in a senior military leadership or procurement job during the previous two years.
The reports appear to have no purpose because hiring former military personnel is in no way illegal, defense officials said in an appeal aimed at House and Senate negotiators who are writing a final compromise version of the 2008 defense authorization bill . . . .
The disputed language, approved by the Senate in its version, asks that any contract of more than $10 million for goods and services include a stipulation that the contractor will provide an annual report of all of the former senior military or procurement personnel who left the Defense Department in the previous two years and are now on the contractor’s payroll.
The Senate provision requires that the report include the employees’ former military agency and the name of each defense system on which they worked. The report also would have to list the former defense workers’ current jobs, including details of exactly what they are doing and the defense systems on which they are working.
Seems like a straight-forward attempt by Congress to avoid agency capture of these former military officials and to prevent a revolving door system which unfairly advantages certain defense contractors.
Hat Tip: Brian Harris
Sunday, October 28, 2007
Sanford Jacoby (UCLA Management) has just posted on SSRN his article Labor and Finance: Perspectives on Risk, Inequality, and Democracy. Here's the abstract:
Researchers have not paid adequate attention to financial development as a factor causing greater inequality and risk. Yet rather than there being a direct effect, the association between financial and labor markets is mediated by political coalitions at the national and corporate levels. Here we trace the historical interplay between financial markets, corporate governance, regulatory politics, and inequality in the United States. There is close examination of equity-market changes since 1980 and their impact on organized labor's efforts to re-regulate finance.
- Richard A. Bales, Explaning the Spread of At-Will Employment as an Inter-Jurisdictional Race-to-the-Bottom of Employment Standards (287).
- Jessica L. Roberts, Accommodating the Female Body (107).
- Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as a Rights-Claiming System (80).
- L. Dustin Riddle & Richard A. Bales, Disability Claims for Alcohol-Related Misconduct (76).
- Aditi Bagchi, Contract v. Promise (photo above) (61).
- Aditi Bagchi, Contract v. Promise (61).
- David Abraham, Doing Justice on Two Fronts: The Liberal Dilemma in Immigration (57).
- Peggie Smith, Welfare, Child Care, and the People Who Care: Union Representation of Family Child Care Providers (44).
- Paul M. Secunda (photo above), Whither the Pickering Rights of Federal Employees? (43).
- Paul M. Secunda (photo above), Reflections on the Technicolor Right of Association in American Labor and Employment Law (42).
Saturday, October 27, 2007
As Paul noted last week, the outcome of the UAW membership vote on the proposed collective bargaining agreement with Chrysler was up in the air. There is uncertainty no longer. The results are in and the membership voted for the contract, although not by a large margin. As the New York Times reports:
The union said 56 percent of assembly workers and 51 percent of skilled trades workers voted in favor of the contract. Voting concluded early today, with Chrysler’s plant in Belvidere, Ill., the last to vote. The Belvidere plant rejected the contract with a vote of 55 percent against approval. But that was not enough to defeat the contract nationwide. . . .
The Chrysler vote was far more turbulent than the process at General Motors, where 66 percent of the members who voted approved the contract this month after a two-day strike.
Workers at Chrysler walked off the job for six hours, but local union leaders were split over the agreement. It was rejected by four assembly plants, but received support at a number of smaller factories as well as four big plants in the Detroit area, which approved the contract on Wednesday. Opponents voiced concerns that the Chrysler pact did not provide as many guarantees of future work as the G.M. contract. That issue is front and center at Ford, which lost $12.6 billion last year and does not expect to earn a profit in North America before 2009.
Talks there, which continued at a slow pace during the Chrysler vote, are expected to step up over the weekend. Generally, the U.A.W. expects to win the same contract terms under its practice of pattern bargaining, but as at Chrysler, the union may have to settle on something apart from the G.M. pact. . . .
hrysler’s disclosure that it had no plans for a future investment at the St. Louis South plant outside Fenton, Mo., prompted workers there and at the adjacent St. Louis North plant to reject the contract. Chrysler workers in Newark, Del., where the plant is scheduled to close, also rejected the contract.
Rather that risk such no votes, Ford instead may try to give as little information as possible about any factory whose future is on the line, said David L. Gregory, a professor of labor law at St. John's University in Queens. “Ford I don’t think is in a position to make anything beyond the barest good-faith declaration of principle that they’re going to do their best,” he said.
As the article notes, it is unclear whether Ford workers will be as willing to strike as the workers at Chrysler. Either way, it promises to be interesting. Stay tuned.
Thanks to Eric Schnapper (Washington), attorney for Respondent in the upcoming U.S. Supreme Court case of Sprint/United Management Co. v. Mendlesohn for providing us with a copy of Respondent's Brief on the Merits.
The questions presented are:
(1) Does Rule 401 of the Federal Rules of Evidence bar all evidence of other-supervisor discrimination or actions in an employment discrimination case?
(2) Does Rule 403 of the Federal Rules of Evidence invariably require, or in all cases authorize, the exclusion of evidence of other-supervisor discrimination or actions?
(3) Did the court of appeals err in holding that petitioner’s in limine motion should have been denied?
Unsurprisingly, I agree with the Eric that this type of other-supervisor discrimination is not only relevant, but should be permitted into evidence when it provides meaningful evidence of whether a discriminatory atmosphere pervaded the company culture.
More specifically, Eric argues:
Two types of pattern and/or practice evidence are relevant to an employment discrimination case. First, evidence suggesting the existence of a pattern of discrimination at the employer, or in the relevant business unit, is “competent evidence.” McDonnell Douglas v. Green, 411 U.S. 792, 804-05 (1973). Statistics are one, but not the sole, example of such evidence. Second, evidence of a pattern and/or practice of discrimination may in some cases be so compelling as to suffice by itself to meet the plaintiff’s burden of proof, and shift the burden of proof to the defendant. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The evidence relied on by the Court in finding such a pattern and/or practice in Teamsters included 40 specific instances of discrimination, precisely the type of evidence that Sprint insists should be deemed inadmissible “me,too” evidence. 431 U.S. at 338.
As Eric explains very persuasively, "The existence of a culture of discrimination is relevant because it tends to explain why a particular supervisor might have engaged in discrimination."
- Vivek Wadhwa, Guillermina Jasso, Ben Rissing, Gary Gereffi, & Richard B. Freeman, Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America's New Immigrant Entrepreneurs, Part III (1284).
- Yaraslau Kryvoi, Why European Trade Sanctions Do Not Work (68).
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (54).
- Virginia Mantouvalou (photo above), Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (31).
- David J. Doorey, The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (29).