Wednesday, September 30, 2009

American Apparel Fires Thousands of Undocumented Workers


American Apparel has more problems (via New York Times), though not with its CEO this time:

A clothing maker with a vast garment factory in downtown Los Angeles is firing about 1,800 immigrant employees in the coming days — more than a quarter of its work force — after a federal investigation turned up irregularities in the identity documents the workers presented when they were hired.

The firings at the company, American Apparel, have become a showcase for the Obama administration’s effort to reduce illegal immigration by forcing employers to dismiss unauthorized workers rather than by using workplace raids. The firings, however, have divided opinion in California over the effects of the new approach, especially at a time of high joblessness in the state and with a major, well-regarded employer as a target.

Wow, this is a minefield to walk into and I am sure I will hear it from people on both sides of the debate, but I do not believe firing these workers and treating them all the same is a good approach. Especially for those immigrants who have been productive American citizens for years, why not give them a chance at amnesty? I know this is controversial, but entering a country illegally does not make one forever ineligible from holding employment in this country in my opinion- we need to have a more nuanced approach and system that takes into account the individual circumstances of these undocumented workers.

More time and resources yes, but the dignity and human rights of individuals requires no less.

HT: Josh Pollack


September 30, 2009 in Labor and Employment News, Labor Law | Permalink | Comments (3) | TrackBack (0)

Supreme Court Grants Cert. in New Title VII/Ricci Case

4United States Supreme Court 112904

Thanks to Carolyn Shapiro (Chicago-Kent) for bringing this to my attention on the empdiscr listsevr.  The Supreme Court granted cert this morning on Ricci and the Section 108 question:
Docket: 08-974
Title: Lewis et al. v. City of Chicago
Issue: When an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

More info over at the SCOTUSBlog
Carolyn argues and I agree that, "given the ongoing litigation and New Haven's position that it was not going to use the test, I think there is an argument that the 'announcement' only happened when the Court issued its decision or possibly even when the City took steps to implement it."


September 30, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

An OSHA Rule Siting


For a federal agency like OSHA that has something like thirty-five permanent standards in their nearly 40-year existence, even proposing a revised standard is big news (BTW, not that OSHA hasn't tried to put standards out over the years).

Anywho, this time OSHA is focused on modifying its Hazard Communication Rule and seeks comments on it from the public.  This proposed Rule would modify OSHA's existing hazard communication standard to conform with the United Nations' globally harmonized system of classification and labelling of chemicals.

If you have insomina, the 679-page rule (BNA subscription required) will certainly do the trick.  I mean who isn't excited about reading up on criteria for classification of chemical hazards; labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; and specified format for safety data sheets. 

Comments may be submitted electronically at, within 90 days of publication in the Federal Register; by fax to the OSHA Docket Office at (202) 693-1648; or by mail to the OSHA Docket Office, Docket No. OSHA-H022K- 2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW, Washington, DC 20210. All submissions must include the agency name and the docket number for this rulemaking (Docket No. OSHA-H022K-2006-0062).


September 30, 2009 in Beltway Developments, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

The Gross Fair Age Discrimination Prevention Act?


It might just be that the awful ADEA mixed-motive case of Gross v. FBL (following the Price Waterhouse dissent and requiring "but for" causation in these cases) may suffer the same fate as the equally awful Ledbetter pay discrimination decision: Congressional reversal.

From Philip Miles of Lawffice Space:

The Senate Committee on the Judiciary has scheduled a hearing on, and I quote, "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?" The witness list includes:

    * Jamie Leigh Jones of the Jamie Leigh Foundation, an organization dedicated to victims of crime working overseas for government contractors and subs;
    * Prof. Michael Foreman from my undergrad alma mater, Penn State, where he directs the Civil Rights Appellate Clinic at the law school; and
    * Jack Gross, plaintiff in Gross v. FBL Financial.

I agree with Philip that some Senators, like Leahy, are targeting the Gross decision for annihilation, but I also agree with him that, "it's just a hearing and to my knowledge no precise action has been proposed."


September 30, 2009 in Agenda 2009, Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 29, 2009

NLRB Seeks Cert on Two-Member Board Issue


As we've been reporting, several parties have sought cert. on whether two-member NLRB decisions are valid. The Board has now joined in asking the Supreme Court to hear the issue.  The Board announced today that it was seeking cert. in two cases, Laurel Baye and New Process Steel.  The core of the announcement states:

The Board has operated with only two members for nearly two years, since the appointments of two Board members expired on December 31, 2007. Rather than cease functioning, the two remaining members – current Chairman Wilma B. Liebman, a Democrat, and Member Peter C. Schaumber, a Republican – have continued to issue decisions in matters on which they can agree. In doing so, they drew on advice from the U.S. Department of Justice’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007, and since that time, the two Board members remaining, acting as a quorum of the group, have issued nearly 500 decisions.

While many of those decisions have been accepted by the parties, dozens have been appealed to the federal courts of appeals on the two-member question, and decisions have been split. The U.S. Courts of Appeals for the First, Second and Seventh Circuits have all held in favor of the Board, while the District of Columbia Circuit, in Laurel Baye, held that the Board did not have the authority to act. In New Process Steel, the Seventh Circuit held that, “The plain meaning of the statute....supports the [Board]’s delegation procedure.” Today’s filings ask the Supreme Court to affirm that finding and to reverse the contrary holding of the District of Columbia Circuit.

Although far from guaranteed, the government's request for cert. definitely increases its chances.  Even aside from my own personal interest in seeing this go to the Court, it's been an issue that has come up periodically for a long time and it needs to be settled once and for all (of course, Congress could clear things up too).

Hat Tip:  Justin Keith & Patrick Kavanagh


September 29, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

FMLA Insight Podcasts: Intermittent Leave and Medical Inquiries


Friend of the blog, Jeff Nowak, sends along links to monthly FMLA podcasts that highlights difficult FMLA issues employers regularly face and provides advice on how employers might handle the situation.  Here is the link for the August FMLA podcast, which provides practical suggestions for handling intermittent FMLA leave: "Do we really need to worry about the FMLA for short absences?" 

The September FMLA podcast, entitled, "Is it true that employers can't contact a health care provider to clarify a medical condition?", deals with the "myth" that employers cannot follow up with an employee’s health care provider to clarify or authenticate medical certification.  Depending on the circumstances, the new FMLA rules provide several additional tools for employers to use when following-up on inadequate or questionable medical certification.
If any readers have any questions about the FMLA or have recommendations of scenarios you'd like Jeff and his firm to cover in future podcasts, please email him at 

For additional resources pertaining to the Family and Medical Leave Act, you can also visit Jeff's firm's FMLA web site at


September 29, 2009 in Pension and Benefits, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Zimmer on Unionism and Equality in China, Mexico and the United States


Mike Zimmer (Loyola-Chicago) (who is really much friendlier than his picture might suggest) continues with his interest in comparative labor law in his newest piece forthcoming in the Loyola University-Chicago International Law Review: Escaping the Westphalian Trap: Unionism and Equality in China, Mexico and the United States. Mike presents the piece at UCLA Law on October 10th.

Here's the abstract:

With increased economic globalization since the 1980s has come increased economic inequality and a decline in union density in most countries of the world, with one notable exception being the Peoples Republic of China. The decline in unionism contributes to increased inequality. This paper will try to begin to answer the question whether a revived unionism operating transnationally can do to help reduce inequality as it did during the industrial era following World War II. To do that, this paper will compare and contrast the union movements in China, Mexico and the U.S.

Part I will set out the contours of the problems the union movement faces because many employers have been able to organize themselves to escape national labor laws and national labor unions. Unions, in these three countries as well as elsewhere, have not escaped the trap set up by the Westphalian-based system of sovereign nation states which use national law to regulate national economies. Part II will sketch out some of the ways the union movement might attempt to respond to the present situation, as well as some of the obstacles such action will need to overcome if the union movement is to escape the Westphalian trap. Part III concludes. 

Sounds like a fascinating piece. I am especially interested in learning more about whether Chinese unionism is really nothing more than an extension of the Maoist state.


September 29, 2009 in International & Comparative L.E.L., Labor and Employment News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Zelinksky on Reforming Health Care


Edward Zelinsky (Cardozo) has just posted on SSRN his article (delivered Thursday as the Dr. Arthur Grayson Distinguished Lecture at Southern Illinois University and to be published in the Journal of Legal Medicine) Reforming Health Care: The Paradoxes of Cost.  Here's the abstract:

Whatever happens in Washington in the weeks and months ahead, the United States is fated for the indefinite future to conduct a prolonged and difficult national debate on health care. The reason for this protracted and arduous argument can be summarized in a single word: cost. Yet, paradoxically, the rhetoric of unspecified cost reduction is used to avoid the painful choices needed to prune health care outlays, choices which inevitably involve agonizing denials of medical services in a world of finite resources. Medical costs cannot be controlled without denying something to somebody. Yet, paradoxically the term “cost” is used in contemporary political discourse to avoid the difficult choices involved in such denials. It is easier to favor unspecified cost reductions, than to identify particular service denials which would actually reduce medical care expenditures. Elected officials are reluctant to deny medical services to cut costs, but health care costs cannot be meaningfully controlled without such service denials. Our employer-based system of medical care is a major reason we confront this difficult situation. Yet, again paradoxically, the employer-based system, though flawed, is the best tool available to us to control medical care costs since employers must respond to competitive pressures in the marketplace and thus are better positioned than is government to implement the painful service denials necessary to curb health care outlays. However, even under the best of circumstances, medical care costs are not a problem which will be solved but rather are a reality to be permanently and painfully managed and controlled.


September 29, 2009 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Evil H.R. Lady ...


... is very upset at employers who penalize employees for calling in sick.  Here's why employers who do so are shooting themselves in the foot.


September 29, 2009 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Monday, September 28, 2009

Union Pacific Preview

Supreme Court

Next week, on October 7, the Supreme Court will hold oral argument in Union Pacific Railroad v. Brotherhood of Locomotive Engineers, an RLA arbitration case.  In the case, the National Railroad Adjustment Board dismissed five employees' challenge to disciplinary actions, concluding that it had no jurisdiction because the union failed to provide written evidence that it met with the employer in conference.  The Seventh Circuit reversed, holding that dismissing the case for reasons unclear at the time the case was files--the court stated that there was no previous direction on when and how evidence of a conference should be presented--violated the union's due process rights.  According to the LLI preview:

Questions presented:

The Railway Labor Act (“RLA”), 45 U.S.C. §§151 et seq., sets forth a comprehensive framework to resolve labor disputes in the railroad industry through binding arbitration before the National Railroad Adjustment Board (“the Board”). The statute provides that the Board's judgment “shall be conclusive . . . except . . . for”: (1) “failure . . . to comply” with the Act, (2) “failure . . . to conform or confine” its order “to matters within . . . the [Board’s] jurisdiction,” and (3) “fraud or corruption” by a Board member. 45 U.S.C. §153 First (q). This case involves the Board’s denial of employee grievance claims for failure to comply with its rules governing proof that the dispute had been submitted to a “conference” between the parties. 45 U.S.C. §152 Second. The Seventh Circuit held that the award must be set aside because the Board violated due process through retroactive recognition of a supposedly “new rule.” The questions presented are: 

  1. Whether the Seventh Circuit erroneously held, in square conflict with decisions of the Third, Sixth, Tenth, and Eleventh Circuits, that the RLA includes a fourth, implied exception that authorizes courts to set aside final arbitration awards for alleged violations of due process.
  2. Whether the Seventh Circuit erroneously held that the Board adopted a “new,” retroactive interpretation of the standards governing its proceedings in violation of due process.
        [LLI list the issues as:]
  1. Are final arbitration awards determined by the National Railroad Adjustment Board subject to review for violations of due process?
  2. Was the National Railroad Board applying a “retroactive” interpretation of the procedural requirements in its arbitration proceedings by dismissing a complaint because of untimely submission of evidence of prior conferencing between the parties?

September 28, 2009 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Last Week's ENDA Hearing and Study of Discrimination by State and Local Governments


Last week, the House Education and Labor Committee held the first full committee hearing in the House on ENDA (The Employment Non-Discrimination Act (H.R. 3017)). ENDA, introduced by Rep. Barney Frank (D-MA), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and in 38 states based on gender identity. Video and links to testimony can be found on the committee's website here

One of the subjects of testimony was this report by the Williams Institute at UCLA School of Law, documenting widespread discrimination on the basis of sexual orientation and identity by state and local governments. This report will be an important piece of legislative history to support the constitutionality of ENDA's abrogation of state sovereign immunity.

For a concise, plain English summary of the bill, see Jillian Weiss's summary here.


September 28, 2009 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Herbert on NY's Card Check Law


Bill Herbert (NY PERB, writing independently) has just posted on SSRN his article, "The Development and Administration of Non-Electoral Labor Certifications in New York." The abstract:

During the debate over proposals in the Employee Free Choice Act to modify United States federal labor policy to reestablish an administrative procedure for the certification of unions without an election, it has been notable that New York’s 50 year history and experience in the use of non-electoral certification procedures have been ignored. This article seeks to fill a void in the literature by examining New York's development and administration of non-electoral labor certifications. It seeks to demonstrate how experiences under state labor and employment law can provide important and relevant information to be considered when discussing changes to federal labor law. The article begins with an overview of New York public sector labor relations history prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes and the establishment of formal grievance procedures by public employers which were the precursors of de jure representational rights and collective negotiations. It then describes the largely untold story behind the development of New York City's collective bargaining system for municipal employees in which included a non-electoral certification procedure similar to that which existed under the Wagner Act. It then turns to the subsequent development and administration of certification without election procedures under New York's Public Employees’ Fair Employment Act, the New York City Collective Bargaining Law and New York Labor Law.
I've both read an earlier version of this article and seen Bill present it, and it's well worth the read.  In fact, it's a must-read for anyone who wants to engage in a debate about card-check representation.  The EFCA debate has largely ignored the fact that we've got a half-century of experience with card check in the U.S. and Bill's article is an important addition to that debate.


September 28, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Langille on International Labour Law


Brian Langille (Toronto) has just posted on SSRN his article (forthcoming Law & Ethics of Human Rights)  What is International Labour Law For?.  Here's the abstract:

This Paper suggests that the answer to the question “what is domestic labor law for?” - commonly regarded as securing “justice against markets” or a justified tax on market activity-has informed the search for the answer for the question “what is international labor law for.” This is reflected in what this Paper refers to as P2, which provides that “the failure of any country to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.” P2 envisions a “race to the bottom” by rational states trapped in a Prisoner’s Dilemma game. The author maintains that this cannot be the objective of ILO which cannot stop “the race” given its deficient enforcement mechanisms to ensure compliance. This Paper suggests an alternative raison d’etre for the ILO, which is called P1, namely social justice: “universal peace can only be established if it is based upon social justice.” P1 reflects what states actually seek to achieve. Following Sen, this Pap er suggests that there is no tradeoff between social justice and economic efficiency. Therefore the promotion of labor rights by the ILO will contribute both to social justice and to economic success. Thus the ILO should promote international labor law so as to lead member states to pursue their self-interest which is consistent with the collective goal of humanity.


September 28, 2009 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Jennifer Wilson, Horizontal Versus Vertical Compromise in securing LGBT Civil Rights, 18 Tex. J. Women & L. 125 (2009).

September 28, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 27, 2009

Trade Unionism in Europe


The Institute for Workplace Studies at Cornell ILR has some interesting statistics on the rates of trade unionism in Europe and related stats.

The study comes from the European Foundation for the Improvement of Living and Working Conditions (Dublin Foundation) and the European Industrial Relations Observatory (EIRO).  The 37 page report is entitled: Trade union membership 2003­-2008 and dated September 22, 2009.


September 27, 2009 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, September 25, 2009

Managing Disputes

Exec guide

Gary Kaplan (DeForest, ... Kaplan & Berardinelli in Pittsburgh) has just published Executive Guide to Managing Disputes (BeardBooks 2009).  Here's the publisher's description:

Drawing upon more than 25 years experience as a business lawyer, arbitrator, and mediator, Gary Kaplan not only explains why litigation is so costly, but also how to manage disputes sensibly to avoid unnecessary litigation, reduce costs, and improve results.

The Executive Guide draws from the latest scientific research and economic theory to explain, contrary to popular sentiment, that the high cost of litigation is systemic, rather than the fault of supposedly greedy lawyers. Indeed, litigation is a perfect storm of circumstances that leads to bad decisions about when and if to settle business disputes and why it is such an inefficient process for obtaining decisions and resolving claims.

The Executive Guide shows how ADR (i.e., Alternative Dispute Resolution), such as mediation and arbitration, can short-cut disputes, and how to use often inexpensive dispute management programs to contain costs and achieve favorable outcomes that focus on cultivating positive business, workplace, and healthcare relationships.

I had the pleasure to read a draft last year.  It's a well-written book, aimed at business managers.


September 25, 2009 in Book Club | Permalink | Comments (0) | TrackBack (0)

Kaplan: Should You Roth?


Richard Kaplan (Illinois) has just posted on SSRN his article (published in Daily Tax Report) To Roth or Not to Roth: Analyzing the Conversion Opportunity for 2010 and Beyond.  Here's the abstract:

Beginning in 2010, all taxpayers will be able to convert their existing Individual Retirement Accounts (IRA) to Roth IRA's, without regard to their level of income or marital status. In effect, taxpayers will be able to lock in current income tax rates on account values that have been eroded by recent investment market declines. This article analyzes who should take advantage of this opportunity, using the barest minimum of arithmetic (and no calculus). 

This is a helpful and practical essay that weighs the advantages and disadvantages of Roth conversions.


September 25, 2009 in Pension and Benefits, Scholarship | Permalink | Comments (1) | TrackBack (0)

UK Court Approves Mandatory Retirement Age


The BBC, via pjhlaw, reports that the UK High Court has upheld a law -- against a challenge that it violated an EC Directive against age discrimination -- permitting employers to set a mandatory retirement age of 65.  However, the judge said that there is a "compelling case" for changing the law, and the government has indicated that it plans to review it.


September 25, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 23, 2009

But Will They Give Up Their Priuses?


Maybe Toyota got to confident watching all of its Priuses on California highways, but this move must have the automaker's PR staff scrambling.  As reported by the L.A. Times, Toyota is demanding $2 million from the state for training its workers, even though it plans to shut down the plant involved early next year.  This is the joint Toyota-GM NUMMI plant, which Toyota now owns by itself:

Toyota Motor Corp. is closing California's last automobile plant, but that isn't keeping the factory from asking the state for $2 million in taxpayer money for recent training that made some of its workers better car builders. The automaker says it deserves to be paid back money it spent on training this year at its Fremont plant under a Feb. 27 agreement with the state's Employment Training Panel. 

But critics are incensed, noting that there won't be any more auto assembly plants left in the state where workers can make use of their training. . . .

The employment training panel hands out funds to companies that want to improve or expand their workforces. The $2-million payment is being sought by New United Motor Manufacturing Inc., which was launched as a joint venture between Toyota and General Motors Corp. to build cars at the Fremont plant. . . . 

According to the agreement between the automaker and the state panel, the training involved "continuous improvement manufacturing skills" as well as "business and computer skills" for jobs that pay $19.58 to $23.64 an hour.

It doesn't look like the agreement required Toyota to keep its plants open, but the company's move here has got to look bad to a lot of California taxpayers.


September 23, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Seiner on After Iqbal


Joe Seiner (South Carolina) continues his impressive series on civil procedure/employment discrimination articles with his forthcoming piece in the Wake Forest Law Review entitled: "After Iqbal."

The abstract:

In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court extended the controversial pleading standard that it announced in Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007), to all civil cases. Iqbal thus confirms that all civil plaintiffs must plead enough facts to state a plausible claim to relief. In addition, the Court’s decision goes even further by defining the contours of pleading discriminatory intent. Iqbal makes clear that an allegation of discriminatory intent cannot be general or conclusory, and must be supported by the proper factual context. While Iqbal and Twombly dramatically rewrite the law on federal pleading, the decisions provide little guidance for employment discrimination litigants, who must routinely establish an employer’s discriminatory intent in a typical Title VII case. This Article attempts to provide that guidance – after Iqbal.

This Article undertakes multifaceted research which uncovers the success rate of employment discrimination plaintiffs at trial and when facing summary judgment, and outlines various other studies suggesting that discrimination continues to permeate through our society. Given the pervasiveness of the discrimination highlighted in these studies, a reasonable inference can be drawn that a claim of employment discrimination – with the proper factual support – is far more plausible on its face than the more doubtful allegations set forth in Twombly and Iqbal. Based on the research set forth in this paper, this Article proposes a unified analytical framework for pleading discriminatory intent in Title VII cases which navigates the Iqbal and Twombly decisions. The proposed pleading framework should serve as a blueprint for Title VII litigants, helping the courts and the parties to better evaluate allegations of discrimination. This paper further explains why Swierkiewicz v. Sorema, 534 U.S. 506 (2002), is still good law as applied to Title VII cases.

Joe has become the real go-to-person on these procedural question involving Title VII issues. I look forward to hear him presenting it live at the Colloquium in a couple of days.


September 23, 2009 in Employment Discrimination, Scholarship | Permalink | Comments (1) | TrackBack (0)