Workplace Prof Blog

11th Cir. Miserly Construction of Title VII

No more jumps out of the page and slaps you in the face, but the Eleventh Circuit still does not think that a worker often called ‘boy’ established a racially hostile environment.

In Alexander v. Opelika Pub. Schs., No. 08-11014 (11th Cir. 11/10/09), a public school employee in Alabama who allegedly was called “boy” eight times over two years and heard a supervisor comment about a noose did not present sufficient evidence to survive summary judgment on his racial harassment claim.

If we're lucky, the 11th Circuit's miserly construction of Title VII will be slapped down again by the Supreme Court.

Hat Tip: Hank Leland

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Drummonds on Reforming Labor Law by Reforming Labor Law Preemption Doctrine

Henry Drummonds (Lewis & Clark) has provided me with a draft of his recent article in the Louisiana Law Review: Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy.

From the Introduction:

The road forward for labor relations policy in the United States lies not in Washington, D.C., but in state capitols. As the current debate over the Employee Free Choice Act (EFCA) reveals, stifling federal labor law orthodoxy grips the private sector union movement. Indeed private sector collective bargaining faces the vanishing point; to the ninety-two point four percent of private sector employees who hold their jobs outside the unionized sector, collective bargaining constitutes, at best, an abstraction. Ironically, public sector unions, governed largely by state law, flourish. Why do blue, pink, and white-collar public employees flock to unions while their counterparts in the private sector do not? . . . .

Not surprisingly the twenty-one “Right to Work” states count among the lowest rates of membership. Despite this widely varying support for unionization in the states, judicially-created, broad federal labor relations preemption doctrines ensnarl all states in a stifling and exclusive, yet strikingly inconsistent, federal labor law regime.

This is an excellent article and one that I agree with wholeheartedly.  I wrote on similar issues in the narrower workplace captive audience here, and more generally about the ironic necessity of state regulation of labor law here. Henry adds new arguments on why NLRA preemption doctrine should be narrowed.

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Zimmer on the Disparate Impact Consequences of Ricci

Mike Zimmer is up on Concurring Opinions with his next installment on the meaning of the Ricci v. DeStefano case for the future of employment discrimination law.  This current post focuses on the disparate impact consequences of Ricci.

Here's a taste:

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact . . . .

Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24th on the list and thus not eligible to be promoted.

Mike promises that there will be a couple more Ricci blog posts in the near future.  In the meantime, Mike reports (via the Connecticut Employment Law Blog) that Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC.  

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Most Unusual Employee Requests

Career Builder, the online job seekers/help wanted site recently posted the results of one of its entertaining surveys, this one on most unusual employee requests. Here are some of the best:

• Request to allow people to change clothes in their cubicles.
• Request to add a tanning bed to the break room.
• Request to put beer in the vending machine.
• Request that jail time be covered under family medical leave.
• Request to institute bikini Fridays.
• Request to only be required to work during daylight hours because employee is scared of the dark.
• Request for a special smoking area for medical marijuana.
• Request that the HR person wear nicer shoes.
• Request for more time off to pursue side business as a clown.
• Request to replace his desk with a futon so employee could lay down and work.
• Request that the lactation room with gliding chair be used for naps, so everyone can use it.
• Request to install a swimming pool for employees to use.
• Request to have the team meeting to be held in Hawaii.

I don't know. The team meeting in Hawaii seems like a good idea to me. Maybe not so much the bikini Fridays.

MM

Yamada: Current Status of Workplace Bullying

David Yamada (Suffolk), leader of the anti-bullying movement, has just posted on SSRN his article (forthcoming Comparative Labor Law & Policy Journal) Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment.  Here's the abstract:

This article details the early history of efforts to make American employment law more responsive to workplace bullying, covering a period roughly from 2000 to the present day, with much of the commentary grounded in the author’s personal involvement in these initiatives. It starts by examining research, education, and advocacy efforts concerning workplace bullying and its legal implications. It then explains the major provisions of the latest version of the Healthy Workplace Bill, model anti-bullying legislation drafted by this author that has been the basis of bills introduced in over a dozen states' legislatures since 2003. The article closes with an assessment of the future of legal and policy initiatives to protect workers against severe workplace bullying in the United States.

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EBRI Reports

Employee Benefit Research Institute has just released a trio of new reports:

• Craig Copeland, Retirement Plan Participation and Asset Allocation, 2007.
• Paul Fronstin, Availability, Contributions, Account Balances, and Rollovers in Account-Based Health Plans, 2006-2009.
• Craig Copeland, Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2008.

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Canadian Views on EFCA

Just Labour: A Journal of Work and Society, which is an electronic journal published by the York University's Centre for Research on Work and Society, has just published a collection of articles entitled, "A Canadian Perspective on the U.S. Employee Free Choice Act."  The collection is intended as a response to some of the misstatements made about Canada's experience regulating certification.  

The articles look really good, so check them out.

-JH

EEOC Listening Sessions on ADA Amendments

The EEOC is holding listening sessions on its proposed rules interpreting the ADA Amendments Act.   BNA's Daily Labor Report (subscription required) has a story on the first session. As is no surprise, disability groups are happy and employer groups believe that the EEOC is pushing the envelope too far.  One interesting note is that it looks like the final rulemaking could (emphasize "could") occur in March.

-JH

Anti-Sweatshop Victory

The student anti-sweatshop movement has just achieved a big victory in pressuring Russell Athletic to rehire 1,200 workers fired in Honduras after they unionized.  The student pressure prompted over 90 colleges to end Russell's ability to use the schools' logos.  Ultimately, it resulted in Russell agreeing to to rehire the workers, open a new unionized plant, and remain neutral at it's other Honduran plants.  As reported by Steven Greenhouse (NY Times), the pressure was significant:

Going beyond their campuses, student activists picketed the N.B.A. finals in Orlando and Los Angeles this year to protest the league’s licensing agreement with Russell. They distributed fliers inside Sports Authority sporting goods stores and sent Twitter messages to customers of Dick’s Sporting Goods to urge them to boycott Russell products.

The students even sent activists to knock on Warren Buffett’s door in Omaha because his company, Berkshire Hathaway, owns Fruit of the Loom, Russell’s parent company. . . .

As part of its campaign, United Students Against Sweatshops contacted students at more than 100 campuses where it did not have chapters, getting them involved, including at Western Kentucky University in Bowling Green, where Fruit of the Loom has its headquarters. The group helped arrange a letter signed by 65 members of Congress, who voiced “grave concern about reports of severe violations” of labor rights at Russell.

As Greenhouse notes, the troubles at Russell were initiated by a critical report by the Worker Rights Consortium, an independent monitoring and compliance group started through the student anti-sweatshop movement.  Mark Barenberg (Columbia) has been heavily involved with the Consortium and has written about the good work it's been doing.

-JH

Widespread Employer Under-Reporting to OSHA

So finds a new astonishing and disturbing report released by the GAO yesterday and reported on by the New York Times:

Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.

The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.

The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .

According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.

It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship.  It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.

OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."

And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.

Hat Tip: Josh Pollack

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McDonald and Public Employment

Jon Harkavy writes to point out that "the Petitioner's brief in McDonald v. City of Chicago, filed today . . . and featured on the SCOTUSblog, is worth a look.  The main pitch is to overrule The Slaughterhouse Cases and its progeny.  The effect on public employment law (among other things) would be dramatic, as the limitations of due process and equal protection would no longer define completely what's lawful and what's not."

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Recently Published Scholarship: Civil Rights and the Low-Wage Worker

The University of Chicago Legal Forum, volume 2009
Civil Rights and the Low-Wage Worker

Articles

• Noah D. Zatz, "The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments?" p. 1.
• David A. Weisbach, "Toward a New Approach to Disability Law," p.47.Maria L. Ontiveros, "Labor Union Coalition Challenges to Governmental Action: Defending the Civil Rights of Low-Wage Workers," p. 103.Michael Selmi, "Unions, Education, and the Future of Low-Wage Workers," p.147.
• Scott L. Cummings, Steven A. Boutcher, "Mobilizing Local Government Law for Low-Wage Workers," p.187.
• Kathleen Kim, "The Trafficked Worker as Private Attorney General: A Model for Enforcing the Civil Rights of Undocumented Workers," p. 247.
• Devah Pager, Bruce Western, David Pedulla, "Employment Discrimination and the Changing Landscape of Low-Wage Labor Markets," p. 317.
• Leticia M. Saucedo, "Three Theories of Discrimination in the Brown Collar Workplace," p.345.
• Michael A. Stoll, "Ex-Offenders, Criminal Background Checks, and the Racial Consequences in the Labor Market," p.381.
• Ruben J. Garcia, "Toward Fundemental Change for the Protection of Low-Wage Workers: The 'Workers' Rights are Human Rights' Debates in the Obama Era," p.421.

Comments

• Benjamin F. Burry, "Testing Economic Reality: FLSA and Title VII Protection for Workfare Participants," p.561.

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Gender Pay Gap

The New York Times' Economix (they seem to be having workplace day today) has a post on pay inequities between men and women.  The post discusses data from a salary-tracking company (PayScale), so the findings aren't scientific, however they are interesting.  The bottom-line is that the study could explain away most pay disparities in jobs earning under a $100,000 a year by factoring in various factors such as education, location, experience, and many others.  But above the $100,000 line, those factors couldn't explain away as much of the gap:

So what is so magical about crossing the $100,000 salary mark that allows men to earn so much more than equally qualified women?

Surely everyone will have a pet theory. [PayScale's Al] Lee, for his part, suggested that higher-paid jobs often have less concrete or quantifiable measures of productivity and duties.

After controlling for outside factors, some of the biggest gender pay gaps are in jobs like chief executive (in which, after PayScale adjusted the data, women earn 71 percent of what men earn), hospital administrator (women earn 77 percent of what equally qualified men earn) and chief operating officer (women earn 80 percent of what equally qualified men earn).

In each of these jobs, performance quality is a relatively subjective measure. Compare those jobs to positions like engineers, actuaries or electricians, where the criteria for a job well done might be relatively more concrete or measurable — and where the salaries earned by men and women are roughly equal.

In other words, theorizes Mr. Lee, jobs in which quality is easier to measure are more likely to be compensated based on merit, so equally qualified men and women are likely to receive equal pay. On the other hand, in jobs where quality measures are more subjective, meritocracy may not rule, and men may be better compensated for reasons other than their qualifications. For example, perhaps men are subconsciously viewed as more competent than women, or are more adept at negotiating for raises.

Not a definitive study to be sure (as the Economix notes with further detail), but it certainly raises some interesting questions.

-JH

A New Direction for the American Labor Movement?

                               Nancy Folbre has a post on the Economix page of the New York Times today that investigates some interesting new developments within the American Labor Movement:

On Oct. 27, the United Steelworkers announced an agreement with Mondragon International to move toward establishment of manufacturing cooperatives in the United States and Canada.

Maybe this agreement represents a symbolic gesture that will not generate any significant economic benefits. Maybe it represents a step in the evolution of a new institutional form for the modern manufacturing firm.

It certainly represents a new direction for the American labor movement . . . . 

With almost 100,000 workers, the Mondragon Cooperative Corporation (M.C.C.) is the seventh largest business group in Spain and the world’s largest workers’ cooperative. Its diverse enterprises, including manufacturing firms, a university, retail shops and financial institutions, are not only worker-owned; they are also democratically managed on the principle of one worker, one vote.

Unions have long been suspicious of worker-ownership proposals intended to co-opt organizing campaigns or as last-ditch efforts to rescue failing companies. But unions also have a long history of collaboration with worker co-ops, based on a broad set of shared values — commitments to democracy and solidarity.

Does "worker ownership represents an alternative to ineffectual collective bargaining?"  Could "expansion of worker-owned enterprises . . . potentially increase the demand for skilled manufacturing workers in so-called 'green jobs.'"  All interesting questions and ones which I would love to hear opinions on from our loyal readers.

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Zimmer on the Procedural Aspects of Ricci

Mike Zimmer (Loyola-Chicago) continues with his thought-provoking series on Ricci with this piece on its procedural aspects on the Concurring Opinions blog:

Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of  employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.

Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of  slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?

Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:

“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our   holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?

Read the rest of Mike's interesting take on this aspect of Ricci and look forward to future installments of his thoughts on other apsects of Ricci in the near future.

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Recently Published Scholarship

Articles

• Mark C. Weber (photo above), Disability Rights, Disability Discrimination, and Social Insurance, 25 Georgia St. U. L. Rev. 575 (2009).
• Mark C. Weber, AAPL Guideline for Forensic Evaluation of Psychiatric Disabilities: A Disability Law Perspective, 36 J. Am. Acad. Psych. & L. 558 (2009).
• Vijay K. Mago et al., Annual Survey of Virginia Labor & Employment Law, 44 U. Richmond L. Rev. 513 (2009).

Student Scholarship

• Kristina D. Cooksey, ERISA -- On the Edge of Equity: Can "Appropriate Equitable Relief" Be Capped?, 28 St. Louis U. Public L. Rev. 527 (2009).

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Law Firm Partners = Employees?

A senior partner at the Milwaukee-based law firm of Godfrey & Kahn has sued the firm alleging age discrimination, thus re-opening the debate on whether (and if so, under what circumstances) law firm partners can be "employees" and therefore protected by the federal antidiscrimination laws. Litigator William Levit, Jr., 71, alleges: “My responsibilities and compensation have decreased as a result of discrimination against me on the basis of my age.”   

Paul Secunda, quoted in an article in Wisconsin Law Journal,  explained that ever since EEOC v. Sidley Austin, just because an attorney is labeled a "partner" does not mean s/he is necessarily not an "employee" under the antidiscrimination statutes:

Secunda noted that firms need to determine what role a partner plays within the context of its business model. Some simply practice law, while others are involved in hiring and firing employees or helping set up compensation standards.

“The Sidley case involved older attorneys who were more employees in a sense that they received salaries, and the court agreed,” Secunda said.

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Here Comes GINA

The Genetic Information Nondiscrimination Act (GINA) will become effective next week (Nov. 21), and Stephen Greenhouse at the New York Times has an overview.  Among the changes we'll see soon:

The most important new antidiscrimination law in two decades — the Genetic Information Nondiscrimination Act — will take effect in the nation’s workplaces next weekend, prohibiting employers from requesting genetic testing or considering someone’s genetic background in hiring, firing or promotions. The act also prohibits health insurers and group plans from requiring such testing or using genetic information — like a family history of heart disease — to deny coverage or set premiums or deductibles. . . .

The biggest change resulting from the law is that it will — except in a few circumstances — prohibit employers and health insurers from asking employees to give their family medical histories. The law also bans group health plans from the common practice of rewarding workers, often with lower premiums or one-time payments, if they give their family medical histories when completing health risk questionnaires. . . .

It will be interesting to see how the courts start applying GINA and the inevitable issues that will come up. Stay tuned.

-JH

Changing Demographics of the Labor Movement

The Center for Economic and Policy Research has issued a new report entitled, The Changing Face of Labor, 1983-2009, documenting the demographic changes in the labor movement in the last 25 years, which mirror the demographic changes in the economy more generally. From the press release,

• Women now make up over 45 percent of unionized workers, up from just 35 percent in 1983. By 2020, women will be the majority of union workers.
• Latinos are the fastest growing ethnic group in the labor movement. In 2008, they represented 12.2 percent of the union workforce, up from 5.8 percent in 1983.
• Asians have seen considerable gains and made up 4.6 percent of the union workforce in 2008, an increase from 2.5 percent in 1989.
• Black workers were about 13 percent of the total unionized workforce, a share that has held fairly steady since 1983, despite a large decline in the representation of whites over the same period.
• Over one-third of union workers had a four-year college degree or more, up from only one-in-five in 1983. Almost half of union women had at least a four-year college degree.
• Only about one-in-ten unionized workers was in manufacturing, down from almost 30 percent in 1983.
• Just under half (48.9 percent) of unionized workers were in the public sector, up from just over one-third (34.4 percent) in 1983. About 61 percent of unionized women are in the public sector.
• The typical union worker was 45 years old, or about 7 years older than in 1983. (The typical employee, regardless of union status, was 41 years old, also about 7 years older than in 1983.)
• More educated workers were more likely to be unionized than less educated workers, a reversal from 25 years ago.
• Immigrants made up 12.6 percent of union workers in 2008, up from 8.4 percent in 1994.
• In rough terms, five-in-ten union workers were in the public sector; one of every ten was in manufacturing; and the remaining four of ten were in the private sector outside of manufacturing.

It's interesting data to go with Jeff's earlier post about public v. private sector unionization.

MM

Important Caterpillar 401(k) Fees Litigation On The Way to Settlement

Update (11/14/09): Not only will Caterpillar engage in far greater disclosure, but under the proposed settlement they will avoid retail mutual funds in large 401k plans, and get bids instead. Individual participants will now know the amount of money they are paying instead  of the generic disclosures that are used in almost all plans.   

From Forbes.com yesterday:

In the war over hidden and excessive 401(k) fees, investors may have won a battle in Illinois.

Caterpillar, the heavy equipment manufacturer in Peoria. Ill. has agreed to settle a class action alleging that employees and retirees in its 401(k) plans were overcharged by potentially millions of dollars.

If a federal judge and independent fiduciary approve the deal the parties struck, Caterpillar will pay $16.5 million to settle the case. More importantly, it has agreed to make changes to its 401(k) plan that could potentially save employees millions of dollars. More important still, it may set a precedent for other companies to follow . . . .

The Caterpillar plan's record-keeping fees would be limited, according to the memorandum on file with the court. Record-keeping fees can add substantially to investor costs. The fees are often based on assets under management, so an investor pays more as his or her balance increases. At Caterpillar, such fees will henceforth be calculated on a flat or per-participant basis . . . .

The settlement is a rare victory for investor advocates. In February, in a 401(k) case against Deere & Co., a federal appeals court judge ruled in favor of the employer. Jerome Schlichter, the plaintiffs' attorney with Schlichter, Bogard & Denton, who handled both the Caterpillar and Deere suits, has sued a dozen other companies over their 401(k) plans, including Exelon, General Dynamics  and International Paper. He says he is appealing the Deere case to the U.S. Supreme Court. The Supreme Court is already hearing a separate case, Jones vs. Harris Associates, which involves the question of whether mutual funds over-charge for their services.

It might be appear to be common sense for companies to engage in these types of disclosures with regard to plan fees, but litigation is proving that such is not the case. 

William Birdthistle (Chicago-Kent) and I previously wrote an amicus brief in the Hecker v. Deere case that is referred to above and it discusses some of these very inequities that currently exist in the way participants of 401(k) plan are charged for mutual fund fees.  I have also joined an amicus cert. brief in the Deere case which will be filed this Monday.

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