Wednesday, June 30, 2010
Tuesday, June 29, 2010
On its last day of the term, the Supreme Court granted certiorari in Thompson v. North American Stainless, 09-291, a case concerning whether Title VII prohibits retaliation against a person associated with someone who engaged in protected activity under the act. A panel of the Sixth Circuit had recognized the claim, but the the court sitting en banc reversed that decision--with six dissents (see here for a prior post, and here for the Scotuswiki page collecting links).
The questions presented in the cert petition (filed by Eric Schnapper--Washington) are:
(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?
(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
The Solicitor General's views had been requested by the Court, and although the Court often follows that recommendation, it did not here--the SG recommended that the Court deny cert. It looks like next term is shaping up to be another big one for employment cases.
Monday, June 28, 2010
Supreme Court will decide on preemption of Arizona's unauthorized aliens statute - LawMemo Employment Law Blog
Via Ross Runkel's Law Memo comes word that the Supreme Court has taken cert in Chamber of Commerce v. Candelaria, a challenge to an Arizona law that penalizes employers from hiring aliens not authorized to work. The Ninth Circuit had upheld the law as not preempted and not a due process violation. An interesting and timely issue that will help set the tone on other state immigration laws, I imagine.
The cert questions taken are:
1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.
3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).
1. The U.S. Supreme Court denied cert. in the San Francisco ERISA preemption case: Golden Gate Rest. Ass'n v. San Francisco, U.S., No. 08-1515, review denied 6/28/10. Apparently, the Court did not envy taking another ERISA preemption savings clause case and besides, the passage of the national health care legislation may make the issue moot now. The case concerned controversial employer mandate provisions of a health care ordinance adopted by the city and county of San Francisco to provide coverage for low-to-moderate income employees. The Ninth Circuit held the ordinance was not preempted.
2. The U.S. Supreme Court astoundingly decided to weigh in on yet another ERISA case. The issue in CIGNA v. Amara is what the standard for recovery is when a summary plan description (SPD) does not comply with ERISA. More specifically, the issue is whether pension plan participants must show that they were “likely harmed” by a deficient summary plan description before they will be entitled to recover plan benefits as set out in the SPD.
- David C. Yamada: Employment Law as if People Mattered: Bringing Therapeutic Jurisprudence into the Workplace, 11 Florida Coastal L. Rev. 257 (2010).
- M. Faith Angell & John J. O'Brien, Cognizing the Second Agenda: The Importance of Acknowledging Perspective When Counseling Clients in Employment Law, 82 Temple L. Rev. 607 (2009).
Friend of the blog, Bill Herbert, has been a busy bee. He recently posted the final paper he presented earlier this month at the 2010 IEEE International Symposium on Technology and Society held at the University of Wollongong, New South Wales, Australia. The paper is entitled: Workplace Consequences of Electronic Exhibitionism and Voyeurism.
Bill also just posted a recent research paper written with Osgood Law School Professor Sara Slinn entitled: New Technology and Representation Elections: Don't Go Mistaking Paradise for Technology Across the Road.
I look forward to reading both. Check them out!
Sunday, June 27, 2010
Just when you thought we were coming finally out of the last financial crisis, the New York Times Magazine warns that the next great economic crisis in the United States might involve public pensions:
Ever since the Wall Street crash, there has been a bull market in Google hits for “public pensions” and “crisis.” Horror stories abound, like the one in Yonkers, where policemen in their 40s are retiring on $100,000 pensions (more than their top salaries), or in California, where payments to Calpers, the biggest state pension fund, have soared while financing for higher education has been cut. Then there is New York City, where annual pension contributions (up sixfold in a decade) would be enough to finance entire new police and fire departments . . . .
Public pension funds are now massively short of the money to pay future claims — depending on how their liabilities are valued, the deficit ranges from $1 trillion to $3 trillion.
Pension funds subsist on three revenue streams: contributions from employees; contributions from the employer; and investment earnings. But public employers have often contributed less than the actuarially determined share, in effect borrowing against retirement plans to avoid having to cut budgets or raise taxes.
Although some retirement security scholars have started to pay more attention in recent years, much more research and scholarship needs to be devoted to creative and innovative approaches to these pressing problems.
Hat Tip: Elizabeth Dale
Friday, June 25, 2010
Keith Lee sends us links to two blog posts on focusing on various issues regarding workers compensation coverage of workers involved in the BP oil spill clean-up. Both are on Fish & Nelson's Alabama Workers' Comp Blog. The articles are:
- Oil Spill Likely to Lead to Future Workers' Compensation Claims, and
- Going In-Depth with the Laws Governing Injured Oil Spill Workers Claims.
It looks like for the first time in its history in North America, Wal-Mart has reached an agreement with a union. Jorge Ramirez, Sec’y-Treasurer and President-elect (and I am proud to say a former student of mine) of the Chicago Federation of Labor played a major role in this, I am sure. Jorge came to the Chicago Fed from the UFCW. Here’s the story as reported in Crain’s Chicago Business.
Connecticut Law Review
Volume 42, Number 4 (2010)
The Four-Day Work Week: Views from the Ground
- Rex L. Facer II & Lori L. Wadsworth, Four-Day Work Weeks: Current Research and Practice, p. 1031.
- Riva Poor, How and Why Flexible Work Weeks Came About, p. 1047.
- Robert C. Bird, The Four-Day Work Week: Old Lessons, New Questions, p. 1059.
Rational Choice, Flexibility, and Accommodation in the Work Place
- Rachel Arnow-Richman, Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance, p. 1081.
Reduced/Compressed Work Weeks: Who Wins? Who Loses?
- Shirley Lung, The Four-Day Work Week: But What About Ms. Coke, Ms. Upton, and Ms. Blankenship? p. 1119.
- Michael Z. Green, Unpaid Furloughs and Four-Day Work Weeks: Employer Sympathy or Call for Collective Employee Action? p. 1139.
- Lonnie Golden, A Purpose for Every Time? The Timing and Length of the Work Week and the Implications for Worker Well-Being, p. 1181
Redefining Work: Possibilities and Perils
- Vicki Schultz, Feminism and Workplace Flexibility, p. 1203.
- Michelle A. Travis, What a Difference a Day Makes, or Does It? Work/Family Balance and the Four-Day Work Week, p. 1223.
- Katharine B. Silbaugh, Sprawl, Family Rhythms, and the Four-Day Work Week, p. 1267
- Emily Grabham, Dilemmas of Value in Post-Industrial Economies: Retrieving Clock Time Through the Four-Day Work Week? p. 1285.
Individual articles from the symposium may be downloaded here (thanks, Hank, for the link!).
Thursday, June 24, 2010
Jeff Nowak, a partner at Franczek Radelet, P.C., just started the FMLA Insights blog, which will highlight significant FMLA cases and developments and explore common FMLA questions and scenarios.
I believe the blog will be a valuable resource for any labor and employment practitioner.Among their first posts is the news out of the DOL a couple of days ago regarding the interpretation of in loco parentis.
Check it out!
The Supreme Court issues its decision today in Granite Rock v. Teamsters. Justice Thomas wrote the decision, with Stevens and Sotamayor concurring in part and dissenting in part. Rick may have more input later, but for now, a summary from SCOTUSblog:
The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question. Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed. The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not. The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.
In a published opinion released earlier this week, the Eighth Circuit has confirmed that a plaintiff can prove pretext by showing that an employer provided reasons for its action that shifted significantly over time. In Jones v. National American University, the plaintiff alleged that she was not promoted to admissions director for one of the university's campus because of her age. A jury agreed.
Jones was in her mid-fifties when she applied for the promotion, had been working in the admissions office for six years, and was one of three finalists for the position. The other two finalists were offered the job and both declined. Rather than offer her the job, however, the university began an expanded search, but had Jones act as the interim director. During that expanded search, Jones had a conversation with one of the decisionmakers about an applicant who was in his mid-fifties. The decisionmaker said that he wasn't sure that "we want a grandpa working with our high school students." Ultimately a 34-year old former hospital administrator was given the position, and Jones resigned in protest. When he accepted her resignation, the same decisionmaker who had made the previous comment told her that she would have been a better choice for the short term but the woman given the position would be better for the long term.
Jones filed a charge with the EEOC, and the university told that agency that Jones wasn't promoted because of poor performance. The EEOC found no cause and issued Jones a right to sue letter. Jones sued, and the university changed its tactics. At trial it contended that Jones was not promoted because she lacked management experience.
This was where things began to unravel for the university. The jury was allowed to infer that this reason was a pretext because it differed substantially from the reason given to the EEOC. Additionally, there was no evidence submitted to substantiate the prior reason--everybody testified that Jones' performance was good. Moreover, none of the job postings had listed management experience as a requirement. Finally, Jones presented evidence that she was more qualified than the person who received the job and at least one of the prior finalists offered the job. The two comments that could be interpreted to show that age was on the mind of at least one of the decisionmakers didn't hurt.
This case provides several important points. First, it's interesting that the EEOC found no probable cause to believe that discrimination occurred. It makes me wonder how its file differed from the evidence presented at trial. Second, the case reiterates the important principle that if an employee can cast doubt on the reason given by the employer, that should be proof sufficient for a jury to find that the plaintiff's protected class was the real reason. And finally, the case demonstrates, that while the second point may technically be true, it helps to be able to point to additional things that highlight both the plaintiff's protected class (the comments) and the lack of overall rationality of the employer's actions (choosing an applicant without a preferred qualification that the plaintiff had).
Wednesday, June 23, 2010
I've been slow to post this news [you may insert joke here], but about 100 medical marijuana workers around Oakland have unionized. A UFCW local organized them and, based on other reports, it appears that the representation occurred through a card-check agreement with the employers, who may have been motivated in part to make their participation in the marijuana trade appear more mainstream. Most of the employees appear to work in a dispensary or gift shop, but others seem to be involved in actually growing the pot, which leads to questions about the agricultural exception under the NLRA. But that, as of yet, hasn't become an issue.
Hat Tip: Dennis Walsh
I'm cross-posting, with permission, Mike Maslanka's post What millennials can teach about microfeedback from his blog Work Matters:
Do you have a "millennial" in your work life? They are the cohort born between 1977 and 1997, the ones 33 years and younger. An article in the May issue of the Harvard Business Review, "Mentoring Millennials" by Jeanne C. Meister and Karie Willyerd, is full of interesting advice on how to do so. Here is one: evaluations that are daily and done Twitter-like in 140 characters. According to the authors’ research, this cohort wants constant feedback and information on how their career is or is not progressing — no formalized, Kabuki-like annual review for them. When advice is brief and timely, it is useful. In practice, this is an on-demand assessment system, with the employee asking questions of the supervisors, such as: "Was my presentation relevant?" or "What can I do to be more successful at the company?" The answers from bosses are limited to 140 characters, so the bosses carefully must think through their responses for them to be useful. Since employees usually pose the questions in close proximity to an event (such as a presentation), the answers are timely, not dusty. It’s called microfeedback.
True enough, but I think all of us -- Millenial or not -- benefit from frequent, targeted, formative feedback. Cf. the single-end-of-semester-exam "feedback" we give to students in first-year law school courses.
Thanks to friend of the blog, Suja Thomas (Illinois), for bringing to my attention this article from the Wall Street Journal on the increased use of workplace chaplains:
A growing number of companies are offering the services of chaplains in the workplace. Managers say many employees who wouldn't think of calling a therapist or an employee-assistance program will willingly turn to a chaplain. Executives at Tyson Foods Inc., which employs 120 chaplains serving a work force of 117,000, say they believe the service reduces turnover. Other companies contract with chaplain-placement services to handle workplace disruptions that managers can't.
Following the military-chaplain model, these roving spiritual advisers typically visit offices or factories weekly, greeting employees, hanging out in the break room, handing out business cards and meeting one-on-one with workers. But they're also on-call 24/7, so chaplains rush to hospitals, restaurants or homes on request, providing comfort and support free of charge to employees . . . .
The chaplains say they don't proselytize or push any particular beliefs. Instead, they spend most of their time encouraging and calming people, offering emotional support or providing referrals to social service agencies or employee-assistance programs. If employees want to talk about religion, the chaplains do so, but only if asked . . . . Voluntary expression of one's religious beliefs at work is permissible under law, but employers can't legally pressure employees to take part in prayer or devotional services.
As I have written recently, I am concerned by the increased presence of religion in the private-sector workplace, and not because I am hostile to religion. Indeed, I am worried about the workplace corrupting religious observance. As I wrote recently in Yale Law Journal Online Essay:
Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination.
To eliminate this danger while remaining consistent with the First Amendment framework for election law post-Citizens United, this Essay urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act (S.B. 519), which became effective January 1, 2010. S.B. 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Enacting a federal law like the Oregon bill, which would protect employees from being terminated, disciplined, or otherwise disadvantaged for choosing not to be subjected to indoctrination meetings, would effectively address this problem and would constitute permissible employment standards legislation . . . .
In addition to political speeches, more companies are hiring ministers to serve their workers. Evangelical Christian organizations are increasingly offering ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are becoming a larger part of the American workplace. Although voluntary religious participation in the private workplace may not be objectionable, power disparities in the employment relationship suggest that some of this employee religious participation may not be a matter of free choice . . . .
The need for this type of legislative response is based on the longstanding recognition that employers’ speech carries a different weight than that of any other participant in political debates, and that the law must be particularly careful to guard employee-voters against the undue influence of their employers . . . .
Religion in the private workplace on a purely voluntary basis is fine, but there must be safeguards in place which prevent employees from feeling that they have no choice in the matter. Here, I also think of the indirect subtle coercive pressures to conform that the Supreme Court discussed in its decisions in Lee v. Weisman and Santa Fe v. Doe. My federal legislative fix would provide the necessary and limited balm.
Tuesday, June 22, 2010
In another move to provide protections to LGBT employees, the Obama Labor Department has clarified the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act to give family leave rights to people who assume the role of caring for a child regardless of the legal or biological relationship, according to an interpretation letter (No. 2010-3) issued by the Wage and Hour Division June 22.
In that letter, Wage and Hour Division Deputy Administrator Nancy J. Leppink wrote: “Either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child . . . . In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.”
Significantly, the letter states that, “[n]either the statute nor the regulations restrict the number of parents a child may have under the FMLA . . . .A simple statement asserting that the requisite family relationship exists is all that is needed."
And even more specifically with regard to same sex relationships, the interpretation letter states: "[A]n employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child."
Needless to say, these employee protections have been long sought by the LGBT community and the letter is another example of the Obama administration following through on its LGBT agenda.
Thanks to friend of the blog, Joe Seiner (South Carolina) for bringing to my attention this article yesterday in the New York Times which chronicles the increasing trend of law schools to inflate their grades to try to make their graduates more competitive on the hiring market.
One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average.
But it’s not because they are all working harder.
The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.
In the last two years, at least 10 law schools have deliberately changed their grading systems to make them more lenient. These include law schools like New York University and Georgetown, as well as Golden Gate University and Tulane University, which just announced the change this month. Some recruiters at law firms keep track of these changes and consider them when interviewing, and some do not.
Law schools seem to view higher grades as one way to rescue their students from the tough economic climate — and perhaps more to the point, to protect their own reputations and rankings. Once able to practically guarantee gainful employment to thousands of students every year, the schools are now fielding complaints from more and more unemployed graduates, frequently drowning in student debt.
FWIW, I think this is a mistaken approach. In a competitive market, legal employer want to know that law students have been subject to a rigorous curriculum and assessment that indicates their likely success as professionals. My sense is that the more sophisticated employees will see right through this ploy and focus on class rank or other indications of merits (like law review membership or serving on a moot court board.
In short, I believe law schools should focus more on what make their law students attractive hires (perhaps more skills-based, experiential learning opportunities) and less on numbers that without comparison really don't tell much about the student's academic performance.
Although it's not yet posted on the Senate's website (none of today's confirmations are), we've heard that Dennis Walsh--whose full-time gig is as Deputy General Counsel at the FLRA and is a frequent contributor to this blog--was confirmed by unanimous voice vote as Chairman of the Special Panel of Appeals. This is the panel that resolves splits of opinion between the MSPB and EEOC.
Congratulations to Dennis!