Wednesday, December 29, 2010
For those of you following the Brett Favre-Jenn Sterger case (for those who aren't, Favre--a former player for the Jets--allegedly sent a bunch of propositions and texts to a forrmer employee of the Jets, including texts of his more personal areas), the statute of limitations for a state sexual harassment case appears to have passed without her filing suit (the federal period had already passed). However, Sterger's attorney alleges that the filing period started later. Moreover, there are other possible claims, and the reaction from Sterger's attorney to the news that the NFL only fined Favre $50,000 for lying in the investigation, because the NFL couldn't establish that he sent the messages, suggests that there may be more to come.
Hat Tip: Alex Long
- Sarah Rajski, In Re Hydrogen Peroxide: Reinforcing Rigorous Analysis for Class Action Certification, 34 Seattle U. L. Rev. 577 (2011).
- Michael Costello, Crawford's Expansive Definition of Oppose Breathes New Life into Pure Third-Party Retaliation Claims Under Title VII, 34 Seattle U. L. Rev. 553 (2011).
Tuesday, December 28, 2010
The NLRB has recently invited briefs in Specialty Healthcare, with regard to how the Board should determine appropriate units in long-term care facilities. The Board's press release does a good job summarizing what's going on, so I'll let the Board speak for itself:
In 1989, the Board promulgated a rule specifying appropriate bargaining units in the healthcare industry. The final rule was limited to acute care facilities. The Board said that it would continue to determine if proposed units were appropriate in nursing homes and other non-acute care facilities “by adjudication.” In 1991, the Board decided Park Manor Care Center, 305 NLRB 872, indicating that in non-acute healthcare facilities it would “take a broader approach utilizing not only ‘community of interests’ factors but also background information gathered during rulemaking and prior precedent.” The Board specifically noted its expectation “that after various units have been litigated in a number of individual facilities, and after records have been developed and a number of cases decided from these records, certain recurring factual patterns will emerge and illustrate which units are typically appropriate.’’
The question of appropriate unit composition that is presented in this case revisits that 1991 decision. In seeking briefs, the Board majority observed that the long-term care industry has changed dramatically in the two decades since Park Manor was decided. Employment growth in the sector has been strong and, during the last decade, nearly 3,000 petitions for representation elections have been filed involving that industry.
The invitation to file briefs specifically asks eight questions, including what the interested parties’ experience has been under the Park Manor decision and whether its application has hindered or encouraged employee choice and collective bargaining. The full invitation detailing the questions, as well as any briefs that are submitted, will be posted on the Agency’s website, at the top of this page.
In dissent, Member Brian Hayes wrote that there is little evidence that current policies are problematic and that changing them could lead to a proliferation of units in the health care industry. He also criticized the majority for inviting briefs addressing the standard for unit determinations in other industries. Doing so, in his view, tests the limits of Board authority to make law on a case-by-case basis, rather than by rulemaking, and indicates that the majority is “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction---a test that has stood for at least 50 years.” Member Hayes concluded that this review poses the risk of contravening “our own Act, express Congressional intent, the experience informing our health care rules, and the Administrative Procedures Act.”
As the dissent notes, this case could have major ramifications across multiple industries, so we'll definitely be watching this one.
Hat Tip: Dennis Walsh
Thursday, December 23, 2010
John Godard (U. Manitoba - Business Administration) and Carola Frege (LSE) have just posted on SSRN their article Union Decline, Alternative Forms of Representation, and Workplace Authority Relations in the United States. Here's the abstract:
This paper draws on a telephone survey of 1000 workers to explore whether alternative, nonunion forms of representation appear to be filling the gap left by union decline, whether this matters to authority relations at work, and whether it may, indeed, help to explain union decline. It finds that non-union associations do not appear to be filling this gap, but that management established, non-union representation systems are twice as widespread as is union representation and are evaluated as favourably by workers. It also finds that unions appear to have positive implications for authority relations at work, as reflected in worker perceptions of security, fairness, and justice. Non-union representation systems do not in-and-of themselves appear to do so, but they tend to be part of a bundle of practices that, in combination, does. Finally, although the results suggest that these systems are often in violation of section 8(a)(2) of the Wagner Act, they bear no association with worker propensity to vote for a union.
We mentioned last month a recent surge in disparate impact claims based on pre-hire credit reports. The EEOC now is on board, having just filed suit against Kaplan Higher Education Corporation. Here's an excerpt from the EEOC's press release:
Since at least 2008, Kaplan Higher Education has rejected job applicants based on their credit history. This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity....
Wednesday, December 22, 2010
Just because he's the acting General Counsel doesn't mean that Lafe Solomon sees himself as a caretaker (a good thing, because he may be acting for a while). Solomon just announced a new policy to systematically seek "appropriate remedies" for serious ULPs during organizational campaigns. These remedies might include additional union access to the workplace or employees, court injunctions, or reading a remedial notice. According to the NLRB press release:
“In such cases, the discharges are often accompanied by other serious unfair labor practices such as threats, solicitation of grievances, promises or grants of benefits, interrogations and surveillance,” the Acting General Counsel wrote in a memo to the regional offices. “These additional unfair labor practices also have a serious impact on employee free choice, as they inhibit employees from engaging in union activity and dry up channels of communication between employees.”
In such cases, remedies should be crafted to “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice.” The memo authorizes regional offices to include in complaints, and in petitions seeking temporary injunctions from federal courts, appropriate remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees. “I believe that these remedies will further the important goal of ensuring employee freedom of choice with regard to unionization and restore the status quo where an employer has committed serious unfair labor practices in response to an organizing campaign,” Acting General Counsel Solomon wrote.
This year the AALS Section on Employment Discrimination and Section on Labor Relations and Employment Law combined forces to produce an annual AALS Newsletter. This newsletter begins with an update regarding relevant AALS presentations, hot topics panels, and cancellations. It continues with a list of promotions, moves and other announcements, followed by a list of publications from section members. The newsletter concludes with a Supreme Court round-up, as well as analyses of two recent Supreme Court decisions and an NLRB decision.
You can get the newsletter here.
The Wage and Hours Division of the Department of Labor yesterday filed a Request for Information from the Public:
regarding the recent amendment to the Fair Labor Standards Act (FLSA) that requires employers to provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child’s birth. The Department of Labor (‘‘the Department’’) administers and enforces the FLSA through its Wage and Hour Division. Contained in this notice are the Department’s preliminary interpretations of the new break time amendment to the FLSA. The Department seeks information and comments for its review on various issues addressed in this notice, as it considers how best to help employers and employees understand the requirements of the break time for nursing mothers law.
Those issues include unpaid break time, what constitutes a reasonable break time, space for expressing milk, notice, the undue hardship exemption, relationship to the FMLA, enforcement, and compliance assistance, and provides additional resources. With the request, the WHD issued its fact sheet on the new law, and invited comments. Comments must be received on or before February 22, 2011, and may be submitted, identified by RIN 1235–ZA00 by either of the following methods: The Federal eRulemaking Portal: http://www.regulations.gov or mailed to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S–3502, Washington, DC 20210.
Hat tip: Marcy Karin
Tuesday, December 21, 2010
Rutgers School of Management and Labor Relations is currently seeking applicants for fellowships focused on the study of employee ownership. Apparently, they're planning on awarding about 20 fellowships and are actively seeking more applicants in the legal field, including pre-tenure legal scholars. The fellowships are intended for:
[T]he study of employee stock ownership, profit sharing, broad-based stock options, and broadened ownership of capital in the corporation and in society in the United States. The Fellows Program invites applications for fellowships from outstanding doctoral students initiating or completing a dissertation, recent Ph.D. graduates and pre-tenure scholars in the areas of economics, history, management/business/labor and employment relations, law, philosophy, psychology, political science, public policy, and sociology for the 2011-2012 academic year. Fellows may be in residence at their own University or visit Rutgers. Four Beyster Fellowships, including the Beyster Visiting Professorship, in the amount of $25,000 each will be offered. Several Kelso Fellowships in the amount of $12,500 each will be offered to scholars studying the Employee Stock Ownership Plan (ESOP) as well as approaches whereby individual citizens may have access to opportunities for capital acquisition. The Smiley Fellowships in the amount of $5,000 focus on economic history. The deadline for applications is January 31, 2011 with decisions by March 15, 2011. Submit a statement of no more than 1500 words describing the proposed research project including its current status and wider significance, a curriculum vitae and three letters of reference sent separately.
You can get more information about the fellowships, including how to apply, here.
The NLRB today issued a proposed rule that employers covered by the NLRA be required to post a notice to employees of their rights under the NLRA, similar to what they are required to post under Title VII and other EEO laws and the FLSA. From the press release,
[T]he Board “believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”
Private-sector employers (including labor organizations) whose workplaces fall under the NLRA would be required to post the employee rights notice where other workplace notices are typically posted. If an employer communicates with employees primarily byemail or other electronic means, the notice would be posted electronically as well. The notice would be available from the agency’s regional offices and could also be downloaded from the NLRB website.
The proposed notice is similar to one recently finalized by the U.S. Department of Labor for federal contractors. It states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectivelywith their employer, and to choose not to do any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
The rule was originally proposed in a petition to the NLRB by Charles Morris (SMU, Emeritus) in 1993. To me, this seems a great idea and eminently reasonable. In fact, reading the proposal, I had one of those forehead-slapping moments, where I wondered why the NLRB had not been requiring this all along--or at least as long as the EEOC and DOL had required similar notices about rights under the laws they enforce. Of course, not everyone likely agrees. Board Member Brian Hayes dissented from the issuance of the proposed rulemaking, stating that he believed the NLRB lacks the statutory authority to promulgate or enforce this type of rule.
The NLRB invites comments either electronically to www.regulations.gov, or by mail or hand-delivery to Lester Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. Additionally, a fact sheet and further information about the proposed rule is available here.
Hat Tip: Sharon Steckler
The Board submitted the new rule to the Federal Register as a Notice of Proposed Rulemaking, which provides for a 60-day comment period. More specifically, the rule would require employers to notify employees of their rights under the National Labor Relations Act (NLRA), including the rights to organize, collective bargaining, and engage in concerted activities for mutual aid and protection.
Here is a copy of the proposed rule.
Friday, December 17, 2010
Alvin Goldman (emeritus - Kentucky) sends word of an endowed Visiting Professorship in Labor Law available next year at UK. Here are the details:
The University of Kentucky College of Law seeks applications and nominations for the James and Mary Lassiter Endowed Distinguished Visiting Professor for one semester of the 2011-12 academic year. The Lassiter Distinguished Visiting Professor recognizes a faculty member who has demonstrated outstanding achievement in his or her field and is not limited by subject matter. Applicants or nominees should have a record of scholarly excellence and of strong classroom teaching. The Lassiter Distinguished Visitor will teach one or two courses and will be encouraged to present workshops on research and participate broadly in the intellectual life of the College of Law.
Review of candidates will begin upon receipt. Expressions of interest and nominations should be submitted no later than January 22, 2011 and should be directed to Mary J. Davis, Associate Dean for Academic Affairs and Chair of Lassiter Committee.
Part of the difficulty in public sector labour relations is the apparently inevitable confrontation between government and civil service unions. This idea is sketched out here with particular attention to the inherently political nature of public sector education in England and Canada. Of the many characteristics of public sector labour relations, governments’ dual role as employer and legislator remains the most distinctive. It provides an advantage which governing parties in both jurisdictions have used to their singular benefit. This power is also the source of limitations within the public sector labour relations framework. With little recourse via the law (grievances, legislation), teachers’ unions have taken their message to the public in an attempt to improve their leverage in negotiations with government. Developing in the late 20th century, public campaigns have been a favoured means for highlighting issues which fit under the broad catchphrase of protecting quality in public education. Conversely, government may also implement its own rebuttal campaign based on the need for financial restraint. As part of this contest, both sides invoke the threat of public outcry as a force which each claims it may muster, for the purpose of maximising its bargaining position. This is the framework of contemporary public sector education collective negotiations. In effect, modern day public sector education bargaining has become the means of retrenchment: government, in a centralised funding arrangement such as that in England and Ontario, allocates money and dictates the terms of employment.
Sam Estreicher (NYU) has just posted on SSRN his piece "Strategy for Labor Revisited." As the name suggests, this is a new look at a similar piece from about ten years ago, "Strategy for Labor." Both are written as conversations among different players in the labor movement, and the "revisited" piece raises some really interesting possible strategies on issues such as the low union density rate, trade, contingent work, card-check certification, and non-labor employment disputes. The abstract:
Editor's Note: What follows is an unofficial transcript of an off-the-record conversation among three of the labor movement's leading strategists. The meeting was convened by C, or "cooperationist," who had been for over ten years the president of a local union, part of a major industrial union, representing 3,000 employees who had been hired to staff a new manufacturing plant in a Southern town ("Newplant"). Newplant had been widely touted as a breakthrough in U.S. labor-management relations because it was consciously designed to promote greater participation of production and maintenance workers in business decisions. In bitterly contested local elections last year, C was voted out of office and now serves in a staff capacity at the AFL-CI0. A, or "adversarialist," a longstanding friend of C, is the research director of another industrial union. A was very active in the Students for A Democratic Society in the 1960s, and after graduating from Antioch College began his career as a labor organizer, working for a succession of unions that had been active in the McGovern-Kucinich wing of the Democratic Party. S, or "stay the course," is the highly respected chief of staff for a national union representing government workers. Section headings and citations are supplied by the editor and do not appear in the original transcript.
Check it out.
Wednesday, December 15, 2010
The Senate recently passed the Whistleblower Protection Enhancement Act by unanimous consent. The bill is no being referred to the House, which backers hope will quickly pass the measure before the end of the year. Among many other things, the WPEA would:
- expand the definition of a protected disclosure
- allow rebuttal of the presumption of a public servant's good performance with substantial evidence (this would reverse the Federal Circuit's rule that this presumption stands absent “irrefragable proof to the contrary”)
- allows some jury trials
- gives the MSPB power to award attorney's fees and compensatory damages
- strips the Federal Circuit of exclusive jurisdiction for five years (see "irrefragable proof" above)
- gives protection to TSA and intelligence employees
- gives equal protection to disclosures related to censoring of scientific information
I have a personal interest in the measures directed at the Federal Circuit, as I was involved with the writing of the case that established the irrefragable standard (Lachance v. White) when I clerked on the court. I'm not going to say what my personal views were, but it's been very interesting to watch the reactions to that case over the years, culminating in this attempt to gut it.
Roger Kearney murdered his married lover after she started pressuring him to leave his partner for her. He was convicted and got 15 years. Kearney's employer, the Royal Mail (he was a postal worker), fired him. Now Kearney is bringing an Employment Tribunal claim for unfair dismissal. A spokesperson for Royal Mail indicates that "Royal Mail will defend its position vigorously at this tribunal."
As PJH Law points out, even if murder does not constitute good cause, perhaps absenteeism is.
For the complete story (with photos), see BBC News.
Trudo Lemmens (Toronto), Daryl Pullman (Memorial - Newfoundland), & Rebecca Rodal (Toronto) have just posted on SSRN their article Revisiting Genetic Discrimination Issues in 2010: Policy Options for Canada. Here's the abstract:
Since the advent of the Human Genome Project, concerns have been raised about the potential inappropriate collection, storage and use of genetic information, particularly in the insurance and employment sectors. As genetic testing technologies become more readily available and affordable, their predictive capacity more accurate, marketing strategies more sophisticated, and access to online genetic information more pervasive, the incentives for third parties to mine and exploit this information will increase. The Council of Europe’s Convention on Human Rights and Biomedicine, which explicitly prohibits genetic discrimination, prompted legislative initiatives in many countries. The U.S. has responded with state legislation and, federally, with the much-heralded but controversial Genetic Information Non-Discrimination Act (GINA) of 2008. GINA has created more recent pressure for a legislative response in Canada and has inspired the introduction of a federal private member’s bill on genetic discrimination in 2010. Given recent developments, it may be time for Canada to revisit this policy issue. This Policy Brief explores three possible options (other than status quo) for addressing potential issues of genetic discrimination: 1) strengthened use of existing human rights and privacy regimes; 2) a new regulatory framework for genetic testing; and 3) sector-specific solutions for insurance.
Tuesday, December 14, 2010
West Virginia University Press has just published the book, Reversing Field: Examining Commercialization, Labor, Gender, and Race in 21st Century Sports Law. The book is based on a great conference that WVU law put on (andre cummings and Anne Lofaso were the major forces behind both the conference and the book) and includes a wide list of contributors such as Bill Gould (Stanford) and Dennis Walsh (FLRA, formerly NLRB), who talked about the baseball strike of 1994-1995. I participated in their session and their insights on this strike was fascinating. The other issues discussed in the book are wonderful as well, as the description indicates:
Reversing Field invites students, professionals, and enthusiasts of sport – whether law, management and marketing, or the game itself – to explore the legal issues and regulations surrounding collegiate and professional athletics in the United States. This theoretical and methodological interrogation of sports law openly addresses race, labor, gender, and the commercialization of sports, while offering solutions to the disruptions that threaten its very foundation during an era of increased media scrutiny and consumerism. In over thirty chapters, academics, practitioners, and critics vigorously confront and debate matters such as the Arms Race, gender bias, racism, the Rooney Rule, and steroid use, offering new thought and resolution to the vexing legal issues that confront sports in the 21st century.
Check it out!
The New Jersey Supreme Court, which has its own difficulties on other counts, just issued an opinion notable for its pained analysis of the intersection of an employee's duty of loyalty with her right to oppose discrimination. Quinlan v. Curtiss-Wright Corp, decided under the state's LAD, confronts a common scenario -- when an employee, suspecting discrimination, copies her employers documents and hands them over to her attorney for use in her case. The major difference between this and other cases was the wholesale nature of the copying -- plaintiff was the Executive Director of Human Resources and compiled 1800+ pages of confidential documents, plus one more. Ironically, it was the one more that generated the most problems,
The 1800 pages were copied and provided by plaintiff to her attorney before she filed suit, and plaintiff''s attorney reported that fact to defendant during discovery. Thereafter, Quinlan copied a performance evaluation of her main comparator -- which she also provided her attorney, who promptly sprung it on the comparator at deposition. Defendant cried foul, and fired plaintiff for the "unauthorized taking of confidential or privileged information [which] constitutes a theft of Company property." Plaintiff promptly amended her complaint to state a claim for retaliation.
From the 30,000 foot level, the controversy pits two principles against one another: plaintiff clearly violated a duty of loyalty to her employer (she had in fact signed an agreement to maintain company documents in confidence, but such a duty would surely be implied from her position). On the other hand, the statutory antiretaliation provision would seem to immunize some such conduct -- after all, a promise extracted by employers from all employees not to discuss any of their work with anyone outside the firm might be perfectly valid under normal contract principles but would have to yield to the necessities of the antidiscrimination laws. And, at the 30,000 foot level, maybe there's not much disagreement on this.
Closer to the ground, however, the situation quickly dissolved into chaos in Quinlan. The trial court ruled that the taking of the 1800 documents wasn't protected conduct, nor was the taking of the performance evaluation. Plaintiff had not been fired for the former act, and, if she had been fired for the latter act, it would not be actionable. On the other hand, if she was fired for her attorney's use of the document, she stated a claim. The distinction got plaintiff to trial where, counting punitive damages, she obtained $10 million judgment. The Appellate Division reversed, however, finding no distinction between the taking and the using of documents.
The New Jersey Supreme Court, in turn, reinstated the plaintiff's verdict. Needless to say, the decision was greeted with commentary critiquing the court for approval of theft of company property. But the decision was scarely a slam dunk for employees seeking to document potential discrimination claims since the court adopted a multi-factor test for determining whether such conduct is protected:
- whether the employee came upon the documents "innocently"
- whether the employee went beyond sharing them with her attorney to evaluate her claim
- the nature of the documents, including the strength of the employer's interest in confidentiality
- whether the disclosure was disruptive
- the strength of the employee's reason for copying the document (as opposed, for example, to identifying it for a later document request during discovery).
As with most complicated tests, this one leaves both employers and employees in a pretty uncertain position. While there may be clear cases (on the employee's side providing one's attorney with a copy to evaluate the case when there is a reasonable fear the document may be destroyed; on the employer's side, firing an employee for breaking into a file cabinet to obtain a document that is the employee then distributes throughout the company), in most cases both sides will have to act in the shadow of uncertainty. Indeed, it might well be that very uncertainty that led Curtiss-Wright not to fire plaintiff immediately upon learning of her copying of the first 1800 documents.
I couldn't help but wonder whether the court (and federal courts before it) made the whole question unnecessarily complicated. Why not a simple rule that priviliges copying such information for the sole purpose of sharing it with one's attorney when the information is discoverable in any event? While the notion of discoverable information has its own complexities, it is much more likely to be yield predictable results than application of the Quinlan six-factor test. Such an approach would not resolve all questions of employee use of confidential documents, but it would provide a brighter line as to the situation where the use of such information is most desirable.
One objection to this is that it would deprive the defendant of a right to a judicial determination of discoverability in advance and also deny it the opportunity for a protective order, But as framed, the right would be limited to those documents that could be obtained anyway in discovery and shared only with those clearly entitled to read them under normal discovery rules. An employee who went beyond this use would be subjecting herself to the uncertainties of the Quinlan factors.
A gut-level objection to this seems to be the self-help nature of the remedy. Indeed, this is the thrust of the dissent of Justice Albin: the majority "sends the wrong message to the bar: lawyers should not signal to a client that stealing documents is an acceptable substitute for the discovery process." But, why not? And Albin's argument misses the point that in many, maybe most, cases, the will be no lawsuit filed and therefore no discovery. As they say in basketball, no harm, no foul. If the information would be obtainable by the plaintiff's lawyer in discovery, why should the plaintiff be subject to discharge for using it to assess or prepare a case?
- Joseph A. Seiner & Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact?, 90 Boston U. L. Rev. 2181 (2010).
- Patrick S. Shin, Liability for Unconscious Discrimination? A Thought Experiment in the Theory of Employment Discrimination Law, 62 Hastings L.J. 67 (2010).
- Eang L. Ngov, War and Peace Between Title VII's Disparate Impact Provision and the Equal Protection Clause: Battling for a Compelling Interest, 42 Loyola U. Chicago L.J. 1 (2010).
- Erin M. Snider, The FLSA Antiretaliation Provision: Defining the Outer Contours of What Constitutes an Employee Complaint, 96 Iowa L. Rev. 385 (2010).