Workplace Prof Blog

Blocking Charges Delay Healthcare Election

We reported earlier on the bitter intra-union dispute in the California health care industry.  Now, BNA's Daily Labor Report (subscription requires) reports that the elections are on hold because of unfair labor practice charges filed by the SEIU.  Region 20 (San Francisco)and 32 (Oakland) has blocked 14 representation petitions while it investigates the ULP charges.  The charges allege, among other things, that the NUHW has violated its duty to bargain with employers and its duty to fairly represent employees.

Why am I thinking that this isn't the last we hear of this?

-JH

Pope to be Acting FLRA Chairperson

The FLRA has just announced that Obama has named Carol Waller Pope as acting FLRA Chairperson, taking over from Thomas Beck.  Pope has been a member of the FLRA since 2000.  She's been a long-time federal employee, working both at the Department of Labor and the FLRA.  Pope's statement:

I am extremely honored by President Obama’s designation to serve as Acting Chairman. I welcome the opportunity to continue to serve the President by leading the FLRA during these challenging times.

I believe that the work of the FLRA is important and that its mission to establish and implement policies and guidance that enhance the stability of labor-management relations in the Federal Government is critical to furthering the public interest in effective operations throughout the Government. I pledge my efforts to work diligently, along with my colleague on the Authority, Thomas Beck, and the many dedicated and talented employees throughout the agency, to ensure that the FLRA fulfills this mission.

No word yet on whether the appointment may become permanent, but it's nice to see her as at least acting chairperson.  Now if they could just get some people to fill the vacancies.

-JH

SSRN Top-10 List of Recent Employment & Labor Downloads

1. Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (130).
2.  Joseph Gerakos (left), Christopher D. Ittner (center), & Frank Moers (right), Compensation Objectives and the Organization-Wide Use of Non-Cash Pay (113).
3. Suja A. Thomas, The Fallacy of Dispositive Procedure (101).
4. Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (89).
5. Nicholas Barr & Peter A. Diamond, Reforming Pensions (87).
6. Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (87).
7. Steven L. Schwarcz, Conflicts and Financial Collapse: The Problem of Secondary-Management Agency Costs (84).
8. Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (84).
9. Matteo Tonello, The Role of the Board in Turbulent Times: Overseeing Risk Management and Executive Compensation (69).
   
10. Elizabeth M. Glazer & Zachary A. Kramer, Trans Fat (69).

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Who's Watching the Watchers": Emerging Technology in the Workplace

William Herbert (Deputy Chair, NY PERB) and Amelia Tuminaro (labor and employment practioner in NYC) have just had their article, "The Impact of Emerging Technologies in the Workplace:  Who's Watching The Man (Who's Watching Me)?," published in the Hofstra Labor and Employment Law Journal.  Part of an interesting symposium on emerging technology and employee privacy, Herbert and Tuminaro examine issues surrounding several technological trends:

This article will examine the legal and policy issues, and practical consequences connected with certain emerging technologies in the workplace. These modern technologies, defined in each section below, are: mandatory genetic testing for disease and the collection of DNA samples for employee identification purposes, global positioning systems (“GPS”), radio frequency identification (“RFID”), and biometrics.

Herbert has done a lot of recent work with technology issues in the workplace and this article with Tuminaro reflects both authors' obvious expertise in the area.

-JH

Detailed Guidance on Kennedy v. DuPont

Albert Feuer, whose very helpful work on Kennedy v. DuPont we've used frequently (see here for the latest), is once again giving a hand to those trying to figure out how to deal with the Court's decision.  After practitioners who didn't consider themselves ERISA experts asked if he could give them some detailed guidance on how to proceed in a post-Kennedy world, he's generously answered the call with his paper, "Suggestions for the Treasury, the DOL, ERISA Plan Sponsors, Administrators, Representatives of Plan Participants and Potential Beneficiaries After  Kennedy v. Plan Administrator of DuPont Savings and Investment Plan."  The abstract:

In Kennedy v. DuPont Savings and Investment Plan (the "DuPont Plan"), 2009 U.S. LEXIS 869 (January 26, 2009), the Supreme Court appeared to proclaim a "bright-line rule" that plan documents determine plan distributions.¹ However, the Court blurred the bright-line rules applicable to (1) plan entitlements, (2) the alienation of pension benefits, (3) qualified domestic relations orders, and (4) plan distributions. The basis for much of this blurring would vanish if the U. S. Treasury ("the Treasury") and the U. S. Department of Labor ("the DOL") resumed their pre-Kennedy approach to many of these issues. Suggestions to improve post-Kennedy employee benefit practices are set forth for the Treasury and the DOL, for plan sponsors, for plan administrators, and for representatives of plan participants and potential plan beneficiaries.

As one who is definitely not an ERISA expert, I can attest to the fact that the paper is a big help in making sense of the issues involved.

-JH

Heightism

Isaac Rosenberg (2008 W&M grad and aspiring l/e academic) has just posted on SSRN his article Height Discrimination in Employment.  Here's the abstract:

At first blush, the concept of real height discrimination is almost laughable. After all, we don't typically think of height when we discuss types of discrimination. Yet there is no denying that we place a high premium on height, be it social, sexual, or economic, and our preference for height pervades almost every aspect of our lives. Economist John Kenneth Galbraith - who towered at 6'8" - described the favored treatment we afford taller people as "one of the most blatant and forgiven prejudices in our society." If you don't believe it, consider whether you yourself would like to be taller and, if so, try putting your finger on the reason why.

This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Specifically, this Article focuses on heightism in the workplace, particularly prejudice against short people because of the unique disadvantages they face vis-a-vis their taller counterparts. Although much scholarship has focused on other forms of trait-based discrimination - most notably weight and appearance discrimination, both of which indirectly involve height as a component - little if any treatment has been given to pure height discrimination. Thus, this Article aims to fill that gap by examining the ways that existing federal antidiscrimination laws - namely Title VII and the Americans with Disabilities Act of 1990 - do and do not protect against height-based prejudice in the workplace. Moreover, after briefly examining state and local remedies for height discrimination, including state antidiscrimination laws, this Article considers but ultimately rejects enacting a federal law that would flatly prohibit height-based employments decisions. Although a comprehensive prohibition would be easiest to administer, such a prohibition would prove both gratuitous and unwise.

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Glazer & Kramer Explain Transgender Discrimination in Terms of Transitional Identity

Elizabeth Glazer (Hofstra) and Zachary Kramer (Penn State - Dickinson) have just posted on SSRN their article Transitional Discrimination.  Here's the abstract:

Transgenderism is in transition. The recent decision in Schroer v. Billington offers transgender plaintiffs hopeful precedent, but it is as yet unclear whether other courts will rule the same way in cases of transgender discrimination. This Essay, prepared for the Temple Political and Civil Rights Law Review symposium on transgender rights, argues that in order to ensure more consistent results in cases of transgender discrimination, courts should embrace an understanding of transitional identity. Transitional identity is identity that borrows from one or more extant identities, but which is inchoate, in that the identity does not express fully any of those extant identities. For instance, a religious convert has a transitional identity, because her identity borrows from the religion from which she is converting as well as the religion to which she will convert. Similarly, a transgender person has a transitional identity, because the person's identity borrows from the gender or sex from which the person is transitioning as well as the gender or sex to which the person will transition. This Essay argues that an understanding of transitional identity is preferable - in that it provides a more stable foundation upon which to fight the battle against transgender discrimination - to the prevalent understanding of transgender identity as gender nonconformity.

An overview of transgender discrimination cases in Part I demonstrates the confused conception of transgender identity that has animated courts' decisions. Part II describes what is meant by "transitional identity," and explains how an understanding of transitional identity in antidiscrimination law benefits not only transgender plaintiffs, but antidiscrimination law as a whole. Part III draws on intersectionality theory in developing a theory of transitional discrimination, which is discrimination on the basis of transitional identity. A brief conclusion summarizes this Essay's ideas.

Transgender discrimination has quickly become a hot topic, and justifiably so.  See other articles on the topic by Glazer & Kramer, by Rick Bales & Katie Koch, by Paisley Currah, and by L. Camille Hebert. 

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Recently Published Scholarship

Articles

• Kevin S. Marshall, The Unfair Trade Practice of Hiring Illegal Alien Workers, 11 U. Pa. J. Bus. L. 49 (2008).
• Martin H. Malin & Monica Biernat, Do Cognitive Biases Infect Adjudication? A Study of Labor Arbitrators, 11 U. Pa. J. Bus. L. 175 (2008).

Student Scholarship

• Daniel T. Lloyd, An Analysis of the Circuit Split Regarding the Scope of Arbitration Clauses in Collective Bargaining Agreements, 11 U. Pa. J. Bus. L. 237 (2008).
• Jessica Reed, From Pickering to Ceballos: The Demise of the Public Employee Free Speech Doctrine, 11 NYC L. Rev. 95 (2007).

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WSJ on Discrimination Claims

Readers of this blog are well aware of some of the recent scholarship on employment discrimination claims in federal court.  The Wall Street Journal has picked up the story--tying the trends to the Ledbetter Act among other things--and discussed studies by Kevin Clermont and Stewart Schwab (both at Cornell) and Joe Seiner (South Carolina).  Some excerpts from the WSJ story:

Workers recently gained new ammunition to file job-discrimination cases in federal court, but they still face long odds against emerging victorious. A battery of recent studies shows that employees who sue over discrimination lose at a higher rate in federal court than other types of plaintiffs. They also get less time in court, with judges quicker to throw out their cases. . . .

Just because more workers have standing to sue doesn't mean that they will receive a better reception in court, if previous patterns hold steady. From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, in all other civil cases, the win rate was 51%, according to a study to be published this month by the Harvard Law & Policy Review. "Judges demand more of discrimination cases than other types of cases," says Stewart Schwab, a co-author of the study and the dean of Cornell University Law School. . . .

Even the federal courts have detected the pattern of more dismissals in discrimination cases, though they surmise different reasons for it than do plaintiffs' lawyers. A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination cases through summary judgments, before the suits reached trial. In 90% of those cases, it was the employers who requested the summary judgment. In contrast, the study found, 3% of contract cases and 1.7% of personal-injury and property-damage suits were dismissed via summary judgments. . . .

Equally troubling to critics, though, is that federal judges also now routinely terminate employment-discrimination cases through motions to dismiss, meaning that the plaintiffs aren't allowed to conduct fact finding to support their claims, according to a law-review study due to be published in August by the University of Illinois College of Law.

The study analyzed the impact of the U.S. Supreme Court's 2007 ruling in Bell Atlantic Corp. v. Twombly, which authorized federal judges to dismiss cases unless plaintiffs can detail enough facts in their initial complaints to state a "plausible" claim -- a higher standard than previously existed. Although the Twombly case involved an antitrust dispute, it has since been applied broadly to discrimination cases, says Joseph Seiner, a professor at the University of South Carolina School of Law, who wrote the study.

As an example of the kind of case that has suffered, Mr. Seiner pointed to Mangum v. Town of Holly Springs, in which a North Carolina federal judge last year dismissed a female firefighter's claim that she had been subjected to a hostile work environment. The judge cited Twombly in dismissing the sexual-harassment claim. Mr. Seiner says "such a harassment allegation should at least get to the stage where you take depositions."

The full articles are worth the read and, hopefully, will be part of a much longer discussion on this topic.

-JH

Possible UAW Agreement

It doesn't appear set in stone yet, but UAW president Ron Gettelfinger has announced that the union has reached a tentative agreement with the automakers as part of bailout negotiations that GM and Chrysler are currently dealing with.  According to the Washington Post, with some nice quotes from Charlie Craver (George Washington):

The plans are expected to accelerate wage reductions, job cuts and loss of benefits, changes already spurred by foreign competition, declining sales and the worst economic conditions since the Great Depression. . . .

While declining to detail the concessions, Gettelfinger said the union is in discussions with the automakers over their Voluntary Employee Beneficiary Associations, the funds to which the companies have contributed hundreds of billions of dollars to pay retirees' health-care costs. Some auto analysts suggested that the companies would need to eliminate or substantially reduce retiree benefits to stay afloat.

Analysts also said the developments are being closely watched by other unions and that the automakers' plans could play a role in undoing gains won over time in the labor movement. The UAW "was the most successful industrial union in the country," said Charles Craver, a labor employment law professor at George Washington University. But "right now employers are vehemently anti-union," Craver said. "They will use this as an opportunity to tell workers, 'This is what happens when you get a union.' " . . .

Craver . . . said the only way for automakers to cut retirees' health costs might be to file for bankruptcy. Negotiating with the retirees might be difficult because they are not union members. "The UAW doesn't represent them," Craver said. If GM and Chrysler can't get "the retirees to agree to it, they will have to go to bankruptcy . . . to substantially alter the pension and health care."

For more background on the 2007 VEBA agreement, see here, here, here, and here.  Although some in the labor movement weren't happy with the VEBA plan, they're no doubt far less happy to see it go in this manner.

-JH

ADR in Labor & Employment

I've been at the ABA LEL Section, ADR in Labor & Employment Law Committee Midwinter Meeting in Key West for the last 3 days.  The panels have been fantastic.  Today, Ted St. Antoine led off by discussing the Due Process Protocol and the National Academy of Arbitrators' draft guidelines for employment arbitration.  We then heard an update on recent labor/employment arbitration cases, followed by a spirited discussion of the Penn. Plaza v. Pyett case.  The day ended with an incredibly enlightening discussion of the intricate ethical issues faced by arbitrators hearing class action cases.

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Secunda on Retaliation and Whistleblowers

Congratulations to Paul Secunda, editor, on the publication of Retaliation and Whistleblowers: Proceedings of the New York University 60th Annual Conference on Labor (Proceedings of the New York University Annual Conference Series).  The publisher is Kluwer Law International.

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Stimulus Bill's Whistleblower Protections

The Employment Law Group Blog has a summary of the new stimulus bill's whistleblower protections.  The whistleblower provisions cover all contractors, governments, or other non-federal employers that receive funds made available by the stimulus.  Protected disclosures include the usual suspects of gross waste, illegal conduct, abuse of authority, and others.  However, the blog states that the bill has several provisions that are much more favorable to whistleblowers than current rules, including coverage of internal disclosures and a "contributing factor" burden of proof.

Check out the post for a full description.

-JH

GM/UAW Bailout Negotations

With a looming March 31 deadline for automakers to submit restructuring plans to justify federal bailout money, GM and the other automakers are talking with the UAW.  Apparently, the major sticking point at GM is the expensive retiree health care plan that the parties agreed to in 2007.  Things are still murky, but it looks like both sides are working hard to reach an agreement.  According to the New York Times:

G.M. will file what is expected to be the largest restructuring plan of its 100-year history on Tuesday . . . . The plan will outline in considerable detail, over as many as 900 pages, how G.M. will further cut its work force, shutter more factories in North America and reduce its lineup of brands to just four, from eight, according to executives knowledgeable about its contents. . . .

But G.M.’s plan to shrink its way to profitability will not mean much without an agreement with the U.A.W. On Monday, G.M. pressed union leaders in a meeting in Detroit for a deal on financing what was the centerpiece of the 2007 U.A.W. contract — a perpetual, G.M.-financed trust to cover health care costs of hundreds of thousands of retired hourly workers and their surviving spouses. Both sides were hopeful that either an agreement, or at least significant progress, might be achieved by the time G.M. submitted its plan, according to three people familiar with the substance of the negotiations. . . .

The company has already extended buyout offers to its entire United States unionized work force to reduce their ranks by another 20,000 jobs. It has also announced a 14 percent reduction in salaried workers around the world, leaving many of its white-collar workers in Detroit with limited prospects. The plan will also probably include revisions in executive compensation and targets for cutting dealers and brands like Saturn and Pontiac. . . .

The U.A.W. talks . . . have been constant since Saturday, when Ron Gettelfinger, the union’s president, at one point cut off discussions with G.M. — only to drive across town to take up the topic of retiree health care with Ford. Ford has not received government loans, so it is significant that the U.A.W. appears to believe it must address retiree health care at all three Detroit auto companies simultaneously.

G.M. has the most at stake with the U.A.W. Its future obligations for retiree health care are estimated at $47 billion, and by next year it is required by its contract to contribute more than $10 billion to the trust set up in 2007. The company, which nearly ran out of money before receiving the first $9.4 billion of its $13.4 billion in late December, is pressing the U.A.W. to accept stock for as much as 50 percent of its next contribution to the trust, according to two people knowledgeable about the discussions.

Mr. Gettelfinger, for his part, is trying to protect one of the jewels of the U.A.W. contract, which is essentially health care for life for anyone who worked on the assembly line and their surviving spouses. G.M. has already canceled health care for more than 100,000 of its salaried retirees. “The U.A.W. at this point understands that it can very well turn into the villain of this whole thing by insisting that its workers receive health care benefits that few workers do,” said Gary N. Chaison, a labor expert at Clark University in Worcester, Mass.

I know this a broken record, but doesn't anyone find it significant that the health care problem would not exist (at least it wouldn't disproportionately burden certain companies) if we had some form of national health insurance?

-JH

Ninth Circuit Grants Rehearing on Class Certification in Gender Class Action against Wal-Mart

You may recall that way back in February of 2007, the Ninth Circuit issued a decision upholding class certification of all women who worked for Wal-Mart or Sam's Club against the parent company for gender discrimination in promotions. The court withdrew that opinion and issued a new one in December of 2007. We've blogged about the certification and related issues here, here, here, here, and here.

Shortly after the new opinion was issued, Wal-Mart filed a petition for rehearing en banc, which was finally granted last Friday. Howard Bashman has blogged about it and included a bunch of great links--you have to scroll down a little to see the entry.

When the briefs are filed and the matter set for argument, we'll let you know.

Hat tip: Paul Secunda

MM

SSRN Top-10 List of Recent Employment & Labor Downloads

1. Gaobo Pang & Mark J. Warshawshy, Calculating Savings Rates in Working Years Needed to Maintain Living Standards in Retirement (119).
2. Shawn Allen Cole (left) & Gauri Kartini Shastry (right), If You are so Smart, Why Aren't You Rich? The Effects of Education, Financial Literacy and Cognitive Ability on Financial Market Participation (116).
3. Benjamin Alarie,  Assessing Tax-Free Savings Accounts: Promises and Pressures (106).
4. Joseph Gerakos, Christopher D. Ittner, & Frank Moers, Compensation Objectives and the Organization-Wide Use of Non-Cash Pay (100).
5. Suja A. Thomas, The Fallacy of Dispositive Procedure (96).
6. Christian E. Weller & Jeffrey B. Wenger, Prudent Investors: The Asset Allocation of Public Pension Plans (82).
7. Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (82).
8. Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (79).
9. Nicholas Barr & Peter A. Diamond, Reforming Pensions (75).
10. Steven L. Schwarcz, Conflicts and Financial Collapse: The Problem of Secondary-Management Agency Costs (67).

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Does Ledbetter Act Resolve AT&T v. Hulteen?

You might remember AT&T v. Hulteen (see here and here), the case about whether retirees should be given service credit for maternity leave they took (and did not get service credit for) before Title VII was amended by the Pregnancy Discrimination Act. The Supreme Court heard oral argument on December 10.  Well, Harper Jean Tobin reports at ACS Blog that the employees have filed a supplemental brief with the Court, arguing that the Ledbetter Fair Pay Act of 2009 resolves the issue in their favor.

The Act provides that

an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Here, the employees can say that the amendment makes clear that the unlawful employment practice took place when the benefit was ultimately calculated--at retirement, and it was at that point AT&T decided not to give full credit for pregnancy leave. Tobin also notes that the Act is expressly retroactive, reaching back to all cases pending when Ledbetter was decided, or filed since; several district courts have already relied on the Act to revive cases that were about to be dismissed. You might recall that Charlie Sullivan agrees with that interpretation and has explained why it's constitutional. We'll see if the Supreme Court agrees, too.

Hat tip: Paul Secunda

MM

Elgin Baylor Sues for Employment Discrimination

First the Knicks and now this--I'm going to have to start assigning NBA games for my employment discrimination course.  Basketball great Elgin Baylor has filed suit against the Los Angeles Clippers and the NBA following his dismissal as Clippers general manager.  According to ESPN:

The lawsuit maintains that Baylor was "discriminated against and unceremoniously released from his position with the team on account of his age and his race" and that he was "grossly underpaid during his tenure with the Clippers, never earning more than $350,000 per year, when compared with the compensation scheme for general managers employed by every other team in the NBA." . . . .

Clippers attorney Robert H. Platt said in a statement Wednesday night that he had not seen the lawsuit and couldn't comment on Baylor's specific allegations. "However, I can categorically state that the Clippers always treated Elgin fairly throughout his long tenure with the team. Prior to his decision to leave the team last October, Elgin never raised any claims of unfair treatment," Platt said. "It's hard to believe that he would now make these ridiculous claims after the organization stood by him during 22 years and only three playoff appearances. It would be hard to find any sports team that has demonstrated greater loyalty to its general manager."

It's unclear what the details of Baylor's allegations are, but we'll let you know when we do.

Hat Tip:  Paul Secunda

-JH

Labor & Worklife Program

Thanks to Carol Furnish for sending us this link to the Labor and Worklife Program at Harvard Law School.  Here's a description of what's offered.  Check out especially the Salary Checker.

The Labor and Worklife Program (LWP) at Harvard Law School provides opportunities for scholars and policy experts “to analyze critical labor issues in the law, economy, and society.”  The Program also offers educational opportunities for labor leaders via the Harvard Trade Union Program, Harvard’s oldest executive training program.  With a focus on improving the quality of work life, LWP projects and programs seek understanding and provide analysis of labor markets, labor law, and the role of unions, business, and government in the context of work.  As expected, the website offers ample discussion of the LWP’s projects and special programs, including the Trade Union Program, the Pensions Project, and the Wertheim Fellowship.  Publications are made available and are organized by author.  Specific topics include pension fund investment, unions and Latinos, health care, and the role of universities in labor relations.  A particularly interesting component of the site is the Salary Checker.  The Checker allows users to specify a job category, job, and state.  The Checker then provides multiple, relevant wage statistics as provided by the Bureau of Labor Statistics.  Also, users have the option of taking a salary survey, which collects data about occupation, location, and salary.

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Global Issues in Employee Benefits Law

Congratulations to Paul Secunda (Marquette), Sam Estreicher (NYU), and Rosalind Connor (Jones Day) on the publication of their book Global Issues in Employee Benefits Law (West 2009).  Here's the publisher's description:

This book focuses on developing issues in international, comparative, and transnational employee benefits law. It is divided into four areas that practitioners will need to become familiar with in order to thrive in our increasingly global economy and legal practice: sovereignty and jurisdictional issues involving the Employee Retirement Income Security Act (ERISA); public and private pension issues with emphasis on the trend toward privatization and defined contribution plans; public and private health care issues surrounding national health care systems and private health insurance schemes; and the intersection between employment discrimination laws throughout the world and global employee benefit law issues.

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