Monday, November 30, 2009
The U.S. Department of Labor today announced the availability of an updated version of its Employment Law Guide, an online publication that describes the major employment laws administered by the department. The Guide helps the public — workers and employers — understand many of the laws affecting the workplace. It helps small businesses develop wage, benefit, safety and health, and nondiscrimination policies and benefits employees and employee representatives who need information about worker rights and responsibilities under federal employment laws.
The Employment Law Guide is a companion to the department’s FirstStep overview advisor, an online system that allows employers to determine which federal employment laws apply to them by answering a few simple questions about relevant variables.
MISSing Sources began in the fall of 2009 and features (1) student articles such as case notes and comments, (2) responses to printed articles and (3) short faculty/practitioner essays.For more information - or to simply view our content - please visit their website. If you have any questions, please contact Stephen Smith at firstname.lastname@example.org or their Electronic Journal Executive Editor, Arthur Park, at email@example.com.
Our goal is to create an online companion to our print-version of the Mississippi Law Journal, which features pieces from students, faculty, and practitioners. We hope to foster an arena for extended academic discussion on current legal issues, while also providing a formal outlet for citation by subsequent law reviews and courts. Responses and essays can be written, posted, and accessed in a very timely fashion, avoiding the printing process that can take months.
At the beginning of each school year, we will have a group of articles released together. After which, we will upload new content as they become available throughout the year. Rather than separate issues for its content, each article will be referenced to the concurring print journal issue. Each article will be archived on our website for future access.
For example: David G. Sansing, Walker W. Jones, III & Jason R. Bush, Unequal Justice: An Unintended Consequence in Mississippi Counties with Two Judicial Districts, 79 Miss. L.J. MISSing Sources 1 (2009), http://mslj.law.olemiss.edu/missingsources/volume79/essays/Sansing.pdf.
We would like to offer your Workplace Prof Blog readership, other practitioners, professors, and colleagues alike an exciting opportunity to contribute to MISSing Sources. We are continually accepting and reviewing potential content and encourage them to join in - even if only a few pages. We are open to both informal and formal works.
During his stint guest blogging for us, Jason Bent asked this burning question: Why Isn't the EEOC Pursuing Better Consent Orders? A settlement in a serious sexual harassment case reported earlier this month by the EEOC might provide some clues.
The suit was brought by the EEOC against the Cheesecake Factory, alleging that the company tolerated very serious sexual harassment of male servers by male kitchen staff in Phoenix, and the facts are really outrageous.
In its lawsuit (EEOC v. Cheesecake Factory, Inc., CV 08-1207-PHX-NVW), the EEOC charged that Cheesecake knew about and tolerated repeated sexual assaults against six male employees by a group of male kitchen staffers. The company denied the allegations. However, according to the agency, the evidence overwhelmingly showed that the men suffered sexually abusive behavior, including abusers directly touching victims’ genitals, making sexually charged remarks, grinding their genitals against them, and forcing victims into repeated episodes of simulated rape. Managers witnessed employees dragging their victims kicking and screaming into the refrigerator, the EEOC charged.
Complaints to virtually every manager at the restaurant were made, but they never put a stop to it. Victims felt helpless, the agency said, and one finally had to call the police.
The consent decree that the company agreed to will last two years. In addition to providing
monetary relief for the six victims, the decree requires more training for its employees and managers about sexual harassment, and more importantly, it requires the company to institute an ombudsman to field and address sexual harassment
complaints by employees. If the company does not comply with the terms, the EEOC can pursue sanctions to enforce the settlement. This isn't exactly a monitor or continued EEOC involvement, but it's certainly a good step in the right direction.
The underlying facts bear some similarity to the egregious conduct the supervisors in EEOC v. Dominion Correctional Servs.LLC. engaged in, although that case may be more egregious based on the identity of the harassers (managers) and the more express quid pro quo requirements of the demands for sexual favors. But in both cases the victims were exposed to conduct that was so severe that it likely violates criminal law. There was no ongoing monitoring in that case--although the company did agree to engage an outside investigator for all future sexual harassment complaints.
So why the difference? Well one important one seems to be the nature of the business--who it markets its services to, and how competitive that business is. The private prison is likely not in a very competitive business, or at least not competitive in a traditional way. It markets its services to the state, but likely doesn't have much competition other than the state itself. And the state doesn't have as much incentive to penalize the company for bad employment practices (maybe misconduct related to inmates, although the state is likely not on the hook for that either). So why should the prison agree to much ongoing interference? What does it have to lose other than the money it agreed to pay out?
The restaurant industry, on the other hand, is highly competitive and depends on the good will of its customer base to continue to patronize it. I imagine that if people think the company is bad enough to their employees they won't go there to eat--they might even think that the bad behavior could easily carry over into the food preparation. And overall, it will hurt the brand, which means other Cheesecake Factory restaurants may suffer. So the Cheesecake Factory has a much greater incentive to agree to a greater degree of monitoring or other intervention, which it can use to protect and promote its brand. The restaurant has much more to lose in the long run, and is thus much more likely to agree to more stringent non-monetary conditions.
That may not be the only difference, but it seems an important one.
A number of my ERISA friends have sent me the case of Braden v. Wal-Mart Stores, No. 08-3798 (8th Cir. Nov. 25, 2009). The case involves a class action dispute, alleging breach of fiduciary issues in the way that Wal-Mart managed its profit sharing and 401(k) retirement plans:
The gravamen of the complaint is that appellees failed adequately to evaluate the investment options included in the Plan. It alleges that the process by which the mutual funds were selected was tainted by appellees' failure to consider trustee Merrill Lynch's interest in including funds that shared their fees with the trustee. The result of these failures, according to Braden, is that some or all of the investment options included in the Plan charge excessive fees. He estimates that these fees have unnecessarily cost the Plan some $60 million over the past six years and will continue to waste approximately $20 million per year . . . .
Braden alleges extensive facts in support of these claims. He claims that Wal-
Mart's retirement plan is relatively large and that plans of such size have substantial bargaining power in the highly competitive 401(k) marketplace. As a result, plansn such as Wal-Mart's can obtain institutional shares of mutual funds, which, Braden claims, are significantly cheaper than the retail shares generally offered to individual investors. Nonetheless, he alleges that the Plan only offers retail class shares to participants. Braden also avers that seven of the ten funds charge 12b-1 fees, which he alleges are used to benefit the fund companies but not Plan participants.
The case is significant because the Plan has over one million participants and nearly $10 billion in assets.
Wal-Mart had moved for a motion to dismiss under 12(b)(1) and 12(b)(6) and:
The district court granted the motion, concluding that Braden lacked constitutional standing to assert claims based on breaches of fiduciary duty prior to the date he first contributed to the Plan and that he otherwise failed to state any plausible claim upon which relief could be granted.
The Eight Circuit reversed and remanded. Specifically on the standing issue, the court held that that Braden made a sufficient showing on Article III standing and proving a cause of action under ERISA and that the district court erred in concluding that he lacked standing to maintain claims for the period before he began participating in the Plan:
In reaching this conclusion, the district court mixed two distinct issues. Whether Braden may pursue claims on behalf of the Plan at all is a question of constitutional standing which turns on his personal injury. Whether relief may be had for a certain period of time is a separate question, and its answer turns on the cause of action Braden asserts.
On the plausibility issue, the court took issue with the high standards the district court placed on the plaintiffs under Iqbal and Twombley:
We conclude that the district court erred in its application of Rule 8. Accepting Braden's well pleaded factual allegations as true, he has stated a claim for breach of fiduciary duty.
The district court erred in two ways. It ignored reasonable inferences supported by the facts alleged. It also drew inferences in appellees' favor, faulting Braden for failing to plead facts tending to contradict those inferences. Each of these errors violates the familiar axiom that on a motion to dismiss, inferences are to be drawn in favor of the non-moving party.
Braden's allegations are sufficient to state a claim that appellees breached their duty of loyalty by failing to disclose details about the revenue sharing payments. Braden alleges that those payments corrupted the fund selection process—that each fund was selected for inclusion in the Plan because it made payments to the trustee, and not because it was a prudent investment.
So, at this stage of the litigation, nothing of real substance has been decided as far as ERISA violations, but at least the court suggests that ERISA defendants will not be normally able to avoid more searching inquiries into their fiduciary acts in these fee litigation cases through a combination of standing and process objections.
Saturday, November 28, 2009
Who does Oprah turn to when she needs advice about the FMLA? Why, own own Marcia McCormick, of course. OK, so maybe Oprah herself isn't too concerned about the question "Can I Stay Home With My New Baby?, but her website is and a recent article with that title explored the basic of FMLA leave, particularly with regard to new mothers. The article--which I'm guessing has little bit larger readership than this blog--leaned heavily on Marcia's expertise.
Check it out.
Recall the long legal saga about Wal-Mart's decision to close its store in Jonquiere, Quebec after the store became unionized. The Wall Street Journal reports today that the Supreme Court of Canada has dismissed a suit brought by several of the store's employees and supported by the UFCW. The Court ruled that the case was moot because "The Jonquiere store is closed and there is no possibility of reinstatement of the employees."
Wednesday, November 25, 2009
A number of people have asked me for a list of current listservs open to law professors discussing the various sub-topics within the labor and employment law field. This type of information often changes with list administrators moving to new schools or new administrators taking over. If new information is know, please provide in comments.
Below is the name of the each of the listservs, the address of the listserv, and who you should contact if you are interested in joining one of these lists. Adjuncts, visitors, and others in residence are welcome on most lists, but non-law-professors are not permitted to join on most lists. Nevertheless, interested individuals should check with the individual listserv administrators.
Employment Discrimination Law empdiscr firstname.lastname@example.org Paul Secunda
Work Law worklaw email@example.com Marty Malin
Employee Benefits benefitsprof-l firstname.lastname@example.org Barry Kozak
Disability Law aalsdisabilitylaw email@example.com Ani Satz
ADR/Arbitration aals-adr-l firstname.lastname@example.org John Lande
If readers know of other subject-specific listservs, please make mention of them in the comments.
Via Daniel Schwartz at the Connecticut Employment Law Blog, who has been best at keeping us updated on all developments in Ricci v. DeStefano, comes the news that the district court has entered its long-anticipated order in accordance with the Supreme Court's opinion. The city was ordered to certify the results of its promotional exam and the lists of eligibility from those results. The post includes links to other great sources including the order and reactions from the firefighters. There are a couple of additional issues the district court still must consider--damages and whether there are any other grounds of liability. That briefing should be done in January.
Hat tip: PS
Tuesday, November 24, 2009
In preparation for the consumerist frenzy that awaits beginning some places as early as midnight Thanksgiving Day, OSHA has issued a fact sheet on crowd control for retail employers. The fact sheet governs planning, pre-event set up, during the sale, and emergency situations. Here are some examples:
- Where large crowds are expected, have trained security or crowd management personnel or police officers on site.
- Create a detailed staffing plan that designates a location for each employee.
- Based on the size of the crowd expected, determine the number of employees that are needed in various locations to ensure the safety of the event (e.g. near the door entrance and throughout the store).
- Set up barricades or rope lines for crowd management well in advance of
customers arriving at the store.
- Make sure that barricades are set up so that the customers’ line does not start
right at the entrance to the store. This will allow for orderly crowd
management entry and make it possible to divide crowds into small groups for
the purpose of controlling entrance.
- Ensure that barricade lines have an adequate number of breaks and turns at
regular intervals to reduce the risk of customers pushing from the rear and
possibly crushing others, including employees.
During the Sales Event:
- Make sure all employees and crowd control personnel are aware that the doors
are about to open.
- Staff entrances with uniformed guards, police or other authority personnel.
- Use a public address system or bullhorns to manage the entering crowd and to
communicate information or problems.
- Position security or crowd managers to the sides of entering (or exiting)
public, not in the center of their path.
There are many more pieces of good advice, all of which make these events sound like war zones. Kudos to OSHA for reminding retailers that employees are at risk too.
A taste from her post on the ACSBlog:
For months now, we have been waiting for congressional action on the Employment Non-Discrimination Act (ENDA), (HR 3017) and (S1584), federal legislation to end workplace discrimination based on sexual orientation and gender identity. There has been a sense that action on this bill was due shortly after work was completed on the hate crimes bill, which was signed into law last month.
Recently, House and Senate Committees held hearings on ENDA. Testimony in both chambers in favor of this measure has been compelling, illustrating the nationwide problem of job discrimination against lesbian, gay, bisexual and transgender people, outlining the inadequacy of federal law to address the issue, delineating the inconsistent patchwork of state and local laws that presently exists, and demonstrating how enacting ENDA to include its provisions among our nation's existing system of non-discrimination laws would help correct these problems . . . .
Mark-up was postponed this week, but from my perspective it should be rescheduled immediately or soon after the Thanksgiving recess. There is no reason to wait to enact this legislation, which is needed and long overdue.
Needless to say, I could hardly agree more with these sentiments.
Mike Zimmer (Loyola-Chicago) continues his wonderful commentary on the ins and outs of the Supreme Court's controversial Ricci decision on the Concurring Opinions blog.
Since our last blog post, Mike has posted two more commentaries:
The first post concerns the relationship between disparate treatment and disparate impact law in the case.
The second post focuses on color-blind standards in a race conscious society.
In my humble opinion, anyone who is interested in understanding the impact of Ricci on employment discrimination law has got to read this series of posts by Mike.
Julie Goldscheid (CUNY) has posted on SSRN her working paper entitled: Gender Violence and Work in the United States and South Africa: The Parallel Processes of Legal and Cultural Change.
Here is the abstract:
This article takes on the parallel processes of law reform and cultural transformation by comparing gender violence reform projects in the United States with those in South Africa. It does so by focusing on one strand of advocacy, that focusing on the economics of abuse. Since economic independence is central to women’s ability to navigate abuse, women’s ability to work in its aftermath is critical. This article compares each country’s current and potential reform projects to address the ways gender violence impacts survivors’ ability to get and keep their jobs.Despite the stark contrasts between the countries’ respective legal and economic contexts, the challenges faced by advocates are different in degree rather than in kind. This article reviews the prevalence of gender violence in each country and the extent and nature of women’s workplace participation. It places reforms addressing the impact of abuse on employment in the broader context of each country’s domestic and sexual violence reform movements and describes employment-related projects, with a focus on those in South Africa.
The similarities and differences in economics, culture and law underscore several lessons about the possibility of achieving transformational change. The article identifies several theories under which South Africa’s progressive legal frameworks could afford recourse to survivors whose employment is adversely affected as a result of abuse. Nevertheless, the comparison highlights the inherent similarities of law reform projects that seek to transform historic biases and cultural norms. It underscores the importance of enforcement and implementation, of centering anti-subordination initiatives in the context of equality, and of maintaining the difficult and ongoing project of challenging bias in its many forms, in order to create both legal change and cultural transformation.
Another important comparative law/employment law piece that should be of interest to anyone concerned about gender issues in the workplace.
- Megan E. Mowrey, Discriminatory Retaliation: Title VII Protection for the Cooperating Employee, 29 Pace L. Rev. 689 (2009).
- Sean M. Anderson, Risky Retirement Business: How ESOPs Harm the Workers They Are Supposed to Help, 41 Loyola U. Chicago L.J. 1 (2009).
- Daniel V. Dorris, Fair Labor Standards Act Preemption of State Wage-and-Hour Law Claims, 76 U. Chi. L. Rev. 1251 (2009).
Monday, November 23, 2009
Maria Ontiveros (San Francisco), Joanna Grossman (Hofstra), Mark Rothstein (Louisville) and current NLRB Chairman, Wilma Liebman, are four of the new members with significant labor and employment law backgrounds.
Here's a link to the press release.
One of the Supreme Court's labor and employment cases this term is Conkright v. Frommert, which addresses the question of whether a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone.
Our very own Paul Secunda, along with eight other professors, have just filed an amicus brief in the case on behalf of the respondents/employees (go here to download Law Professors' Conkright Amicus Brief in Support of Respondents).
Should be an interesting case, so stay tuned.
Tracy Barker, who says a U.S. State Department employee sexually assaulted her in Iraq in 2005 has won $2.93 million in arbitration from KBR, the military contracting company that employed her. As ABC News exclusively reported, the federal government had refused to prosecute the man Barker says attacked her, even though the State Department recommended he be charged . . . .
KBR has challenged the award and wants it modified. "At no time has Ms. Barker's claim of rape ever been confirmed," said Heather Browne, the director of communications, in an e-mail to ABCNews.com.
"I was raped," Barker responded. "KBR knows that and they're wrong about that."
Makes you wonder why the feds refused to prosecute in the first place, no? We recovered a related story (no, this is not an isolated incident) back last June.
David Doorey (York Univ. (Canada)) writes to tell us that a big wig Canadian official, John McKennirey, who was Canada's point person on North American Agreement on Labor Cooperation (NAALC) bargaining and held various other senior positions in the Canadian government responsible for developing trade and labour linkages, has written a short article setting out his ideas for reform of trade agreements and the labour linkage.
Mr. McKennirey has 'published' his thoughts on Reforming the Labour-Trade Linkage on David's blog. Because one of the main audiences he hopes to reach is Americans, we are pleased to post a link to it on this blog as well.
As some readers may be aware, in late October, President Obama signed into law several amendments to the FMLA that expand the FMLA rights of military families. The new law significantly broadens an employee's right for "exigency leave" due to military service and to care for a servicemember.Here is a link to a podcast by Jeff Nowak and his firm which describes the new changes to military family leave and highlights possible FMLA amendments to keep an eye on over the next several months.
What I find particularly interesting about these FMLA amendments is their impact on the already existing military leave provisions in USERRA. My understanding is that whereas FMLA focus on the needs of a military's persons family (qualifying exigency leave and military caregiver leave), USERRA focuses on the leave needs of the military individual.
The new amendments in October 2009 expand FMLA entitlement now applies to regular armed forced (not just reserve and guard members) and expands the leave entitlements to any military service (not just Afghanistan and Iraq). Military caregiver leave has been expanded to apply to those who are no longer currently in the military (so now applies to permanent disabilities of veterans within five years of military service and also to injuries that have been aggravated by current military service).
Sunday, November 22, 2009
Add another court of appeal to the list of those supporting the NLRB's power to issue two-member decisions. This time it's the Fourth Circuit in Narricot Indus. v. NLRB. That makes it four courts (1st, 2nd, 4th, and 7th Circuits) to one (D.C. Circuit). The Fourth Circuit's holding included this analysis of Section 3(b) of the NLRA and the D.C. Circuit's decision (see here for a previous discussion of the provision):
The D.C. Circuit has reached a contrary conclusion, reading § 3(b) as creating distinct quorum requirements for the Board and designated three-member groups. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472- 73 (D.C. Cir. 2009). That court thus concluded that the phrase "except that" is "present in the statute only to indicate that the delegee group’s ability to act is measured by a different numerical value." Id. at 472. In the court’s view, the Board quorum requirement of three members "must be satisfied ‘at all times,’" regardless of whether the Board’s authority is delegated to a group of its members. Id. (quoting 29 U.S.C. § 153(b)). We disagree with this view, concluding that it is based on an overly narrow construction of the modifying phrase that directly follows the three-member quorum requirement: "except that two members shall constitute a quorum of any group designated pursuant to [the delegation provision]." 29 U.S.C. § 153(b) (emphasis added). The statutory phrase "except that" ordinarily introduces an exception. Had Congress desired to write the statute as the D.C. Circuit reads it, it would have simply omitted the words "except that" from § 3(b). The statute would then contain two independent quorum clauses, one applicable to the Board and the other to three-member groups. As it is, however, § 3(b) contains a quorum requirement applicable "at all times," except where the Board has delegated its authority to a three-member group. Because the Board made such a delegation in this case, we see the D.C. Circuit’s reading of the statute as unpersuasive.
Now it's just up to the Supreme Court to sort this mess out.
Hat Tip: Patrick Kavanagh & Dennis Walsh
Friday, November 20, 2009
A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:
Big Brother is watching. That is the message corporations routinely send their employees about using email.
But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .
In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.
That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.
To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.
Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.
Hat Tip: Joe Seiner