Workplace Prof Blog

DOL Decision Expands SOX Whistleblower Protection

The Administrative Review Board of the Department of Labor has significantly broadened the scope of whistle blower protection under SOX in Sylvester v. Parexel.    As scholars have noted, few SOX whistle blowers had previously prevailed at the ARB due its prior narrow interpretation of the law.   The ARB held that 1) The heightened pleading standards of Federal Courts (Iqbal and Twombley) do not apply to SOX claims  2) the Complainant need only express a "reasonable belief" of a SOX violation to engage in protected activity (with an accompanying less rigorous test for such reasonable belief) 3) protected activity need not describe an actual violation of law 4) the "definitive and specific" evidentiary standard of Platone applied in prior ARB decisions is not appropriate 5) SOX complaints do not have to relate to fraud against shareholders and 6) a SOX complaint need not establish criminal fraud to prevail on a retaliation claim.   This same dispute previously produced the Parexel NLRB decision (356 NLRB No. 82) which significantly expanded protected, concerted activity under Section 7 of the Act.

Hat tip: Pat McDermott (Salisbury), who served as counsel-of-record for Complainants.

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Work as Art

The Massachusetts Museum of Contemporary Art (MASS MoCA) just opened an exhibit called The Workers.  Here's a description:

[W]hat does work look like today in a global economy marked by outsourcing, rapid migration, disruptive economies, and a state of labor that seems fractured, precarious, and almost invisible? With video, sculpture, photography, and performance art from 25 artists, this exhibition examines the way labor is represented today (and how some contemporary workers choose to represent themselves).

Hat tip: Bill Herbert.

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Recently Published Scholarship

• Charlotte Garden, Labor Values are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, 79 Fordham L. Rev. 2617 (2011).
• Jessica L. Roberts, The Genetic Information Nondiscrimination Act as an Antidiscrimination Law, 86 Notre Dame L. Rev. 597 (2011).
• Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm & Mary L. Rev. 1483 (2011).
• Robert N. Wilkey, The Non-Negotiable Employment Contract -- Diagnosing the Employment Rights of Medical Residents, 44 Creighton L. Rev. 705 (2011).
• R. George Wright, Retaliation and the Rule of Law in Today's Workplace, 44 Creighton L. Rev. 749 (2011).
• Shannon K. Stevens, Baseball's DNA Testing Policy Strikes Out: Genetic Discrimination in Major League Baseball, 41 Seton Hall L. Rev. 813 (2011).

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Recently Published Scholarship: FIU Symposium on NLRA

FIU Law Review
Volume 5, Spring 2010

 

• R. Alexander Acosta, Rebuilding the Board:  An Argument for Structural Change, Over Policy Prescriptions, at the NLRB, p. 347.
• Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, p. 361.
• Paul M. Secunda, The Contemporary 'Fist Inside the Velvet Glove':  Employer Captive Audience Meetings Under the NLRA, p. 385.
• Jeffrey S. Lubbers, "The Potential of Rulemaking by the NLRB," p. 411.
• Jeffrey M. Hirsch, Defending the NLRB:  Improving the Agency's Success in the Federal Courts of Appeals, p. 437.
• Thomas W. Brudney, Victims on Trial?  A Backpay Case at the NLRB, p. 465.
• Anne Marie Lofaso, The Vanishing Employee:  Putting the Autonomous Dignified  Union Worker Back to Work, p. 495.
• Jennifer Hill, Can Unions Use Worker Center Strategies?  In an Age of Doing More With Less, Unions Should Consider Thinking Locally But Acting Globally, p. 551.
• Catherine L. Fisk, The Role of the Judiciary When the Agency Confirmation Process Stalls:  Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, But Didn't, Address in New Process Steel, L.P. v. NLRB, p. 593.
• Matthew T. Bodie, "Mandatory Disclosure in the Market for Union Representation," p. 617.
• James J. Brudney, Private Injuries, Public Policies:  Adjusting the NLRB's Approach to Backpay Remedies, p. 645.
• Michael C. Harper, A New Board Policy on Deferral to Arbitration:  Acknowledging and Delimiting Union Waiver of Employee Statutory Rights, p. 685.
• John Sanchez, Two Is Company but Is It a Quorum? p. 715.
• Dennis P. Walsh, Two Is Company and Two Can Be a Quorum:  A Reply to Professor Sanchez, p. 739.

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DOL Warning: Don't Play in Mines

The Department of Labor's Mine Safety and Health Administration helpfully reminds us that mines are not safe places for summer play.

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Protection for the Rat

Following the NLRB's recent protection for union banners, that ruling has now been extended to inflatable rats.  In Brandon Regional Medical Center, the NLRB (3-1) concluded that use of an inflatable rat was not unlawful, coercive secondary pressure.  According to the NLRB's announcement:

The case, Sheet Metal Workers Local 15 (Brandon Regional Medical Center), was originally decided by the Board in January 2006. In that decision, the Board found that a mock funeral staged by the union in front of an acute care hospital was unlawfully coercive. Given that decision, the Board found it unnecessary to rule on the display of the inflatable rat balloon. 

The union, Sheet Metal Workers International Association, Local 15, which had been protesting the hospital’s use of non-union contractors, appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. In June 2007, the court reversed the Board’s decision, finding that the use of a faux coffin and a costumed Grim Reaper outside the hospital was not “coercive.” The case was remanded to the Board for review of other issues raised in the case, including the legality of the balloon display.

Today’s 3-to-1 Board decision follows the reasoning laid out by the Board in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found the display of large stationary banners at secondary employer locations was not unlawful.

The National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer. Under existing precedent, picketing that seeks a consumer boycott of a secondary is usually coercive and therefore unlawful, whereas stationary handbilling with that same object is not, and is therefore protected speech. The question before the Board was where the use of a 16-foot-tall inflatable rat balloon falls on that continuum.

The Board majority – Chairman Wilma B. Liebman and Members Craig Becker and Mark Pearce – found that the balloon display did not involve any confrontational conduct, unlike picketing.   Nor was the display coercive in other ways, the majority found. It observed that the union agents involved in the display did not move, shout, impede access, or otherwise interfere with the hospital’s operations.  Rather, the “rat balloon itself was symbolic speech.  It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”

Dissenting, Member Brian Hayes found that the display was coercive, and therefore unlawful. “Considered in the abstract, or viewed from afar, the display of a gigantic inflated rat might seem more comical than coercive,” Member Hayes wrote. “Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.”

As the decisions in this case illustrate, these "coercive conduct" cases are very fact dependent.  Therefore, although this decision may be portrayed differently in the press, it does not mean that all uses of inflatable rats and other animals will be lawful.

-JH

Supreme Court's Whiting Immigration Decision and Griffith on Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work

This is not only a big labor day in Wisconsin for the reasons Jeff points out in the previous post, but also as far as immigration law and employment law. The US Supreme Court decided today in a fractured opinion in Chamber of Commerce v. Whiting (U.S. May 26, 2011), that the Arizona law, which attempts to impose sanctions for the employment of unauthorized aliens through, among other things, “licensing and similar laws," is valid.  More specifically, the Court upheld against preemption attack the Legal Arizona Workers Act, which provides that the licenses of state employers that knowingly or intentionally employ unauthorized aliens may be, and in certain circumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify.  The Court reasoned tha because, "the State’s licensing provisions fall squarely within [IRCA]’s savings clause and that the Arizona regulation does not otherwise conflict with federal law, we hold that the Arizona law is not preempted."

With great timing, Katie Griffith (Cornell ILR) has posted her new piece on SSRN, forthcoming in the Yale Law and Policy Review: Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work.

Here is the abstract:

Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes—Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework.

The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.

Great read and the piece provides a much needed alternative perspective to the decision by the Supreme Court today in Whiting. Check it out!

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Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes—Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework. The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.

Judge Strikes Down Wisconsin's Anti-Union Law

Update (PS): Here is the actual decision and some local analysis from the Milwaukee Journal Sentinel on the implications for th bill for public sector bargaining in Wisconsin. My take is that this is a partial victory, because the Wisconsin Supreme Court is scheduled to hear the case on June 6th and there is a 4-3 conservative majority which is likely to uphold the law.  This will however only lead to the end of the procedural challenges to the law and substantive challenges will no doubt follow. 

Judge Sumi has now issued her final ruling in the open meetings law challenge to Wisconsin's anti-union law.  As was suspected, she held that the way in which the law was passed violated the state open meetings law (which, among other things, required at least two hours of notice to the public before a vote) and issued a permanent injunction against the law.  According to the New York Times:

The Senate’s 19 Republicans approved the measure, 18 to 1, in less than half an hour, without any debate on the floor or a single Democrat in the room. . . . Republican senators asserted that they had enacted the collective bargaining law under emergency conditions, obviating the need to comply with the open meetings law. But Judge Sumi said she found no official evidence of emergency conditions or notice.

“This case is the example of values protected by the open meetings law: transparency in government, the right of citizens to participate in their government and respect for the rule of law,” Judge Sumi wrote in her conclusion. She said the evidence demonstrated a failure to obey even the two-hour notice allowed for good cause if a 24-hour notice was impossible or impractical. . . .

Judge Sumi rejected the Republicans’ claims that the open meetings law did not allow bills passed by the State Legislature to be struck down, asserting that only laws by lesser bodies can be overturned under that law. She also rejected the idea that the law was so important that it should stand despite the open meetings violation. Quoting a Wisconsin Supreme Court decision from last year, Judge Sumi wrote, “The right of the people to monitor the people’s business is one of the core principles of democracy.”

I still find it interesting that the Republicans don't just pass the bill again.   The article states that there is worry that the Democrats will leave again or fear over pending recall elections.  None of this seemed to bother them initially, but perhaps the backlash to this law had more of an impact on proponents than it first appeared.  The state supreme court will hold oral arguments on the case on June 6, so stay tuned.

-JH

The Idea of Labour Law

Congratulations to editors Guy Davidov (Hebrew U. Jerusalem) and Brian Langille (Toronto) on the publication of their book (Oxford U. Press) The Idea of Labour Law.  There is a tremendous cast of chapter authors on this book -- too many to list in this post, but they are listed on this flyer (which also entitles the reader to a 20% discount on the book).  Here's the publisher's description:

Labour law is widely considered to be in crisis by scholars of the field. This crisis has an obvious external dimension - labour law is attacked for impeding efficiency, flexibility, and development; vilified for reducing employment and for favouring already well placed employees over less fortunate ones; and discredited for failing to cover the most vulnerable workers and workers in the "informal sector". These are just some of the external challenges to labour law. There is also an internal challenge, as labour lawyers themselves increasingly question whether their discipline is conceptually coherent, relevant to the new empirical realities of the world of work, and normatively salient in the world as we now know it. This book responds to such fundamental challenges by asking the most fundamental questions: What is labour law for? How can it be justified? And what are the normative premises on which reforms should be based? There has been growing interest in such questions in recent years. In this volume the contributors seek to take this body of scholarship seriously and also to move it forward. Its aim is to provide, if not answers which satisfy everyone, intellectually nourishing food for thought for those interested in understanding, explaining and interpreting labour laws - whether they are scholars, practitioners, judges, policy-makers, or workers and employers.

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Important ADA Case on Working as a Major Life Activity, Regarded As, and Retaliation

Although we're winding down on pre-amendment ADA cases, the Seventh Circuit just issued one that may have significant implications for post-amendment cases as well. In Miller v. Ill. Dep't of Trans., the court considered when work can be considered a major life activity, when an employee will be considered to be regarded as disabled, whether a proposed accommodation was reasonable, and whether there was an issue of material fact on the plaintiff's retaliation claim. Most of these issues will continue to be at least as important (and maybe more so) under the amendments, although they might be framed a little differently, so the case is worth analyzing in some depth.

The plaintiff, Darrell Miller, worked for IDOT for five years as a highway maintainer on a bridge crew before he was discharged. Miller had a serious fear of heights, later diagnosed as acrophobia, and he notified his supervisor that he would not be able to work unsecured in extreme positions above certain heights. The supervisor accommodated this limitation, and accommodated the limitations of other members of the crew too. Each member would do work they could and fill in where other members could not. Miller could do about 97% of all of the work the crew did, and there was only one occasion in which he was not able to perform a task. That occasion led to his discharge and this lawsuit.

After a number of years without any problems, Miller's supervisor ordered him to do a task that he would have to stand unsecured on a bridge beam for. Miller tried but had a panic attack and couldn't complete the task. He was taken by ambulance to a hospital. After this incident, Miller was diagnosed with acrophobia, and Miller characterized his limitation as not being able to work above 20 feet in an unsecured, extreme position. IDOT treated him, though, as if he could never work above 20 feet or where he might think he was above 20 feet. Something he had been doing fine (as long as he was secured) for years. A memo to the IDOT personnel department interpreted this already broad limitation even more broadly to include any work in which a person might be able to see that they were significantly higher than a surface below them (able to see through holes in a bridge's road surface, on a steep hill, etc.). The memo suggested that there was no IDOT highway job that Miller could do.

The court of appeals found that Miller had created a material issue of fact on whether IDOT considered him disabled from working. To be disabled from working, a person must be disabled from a broad class of jobs, not just the particular job at issue. The key here was that the "regarded as" standard is subjective, and IDOT essentially admitted that it perceived Miller to be disabled from a broad class of jobs in its memo. Thus, it regarded him as substantially impaired and unable to work generally.

On the accommodations request, the court found that a reasonable jury could either find that the work Miller could not do was not an essential function of his job or that the accommodation to have other members of the bridge crew do it was reasonable since that was how the crew as a whole had been functioning for years.

On the retaliation claim, when Miller had requested an accommodation, a personnel employee told him that the IDOT did not grant requests, and she denied the accommodation. Miller was ordered back to work, though, and when he returned to work, he called the personnel employee who had refused his accommodation request "Arch Enemy Number 1," and while he said he had never hit a woman before, he commented that he "sometimes . . . would like to knock her teeth out." Miller was fired for insubordination. This may sound bad, but Miller produced evidence that his supervisor had threatened coworkers a number of times and even threatened to kill three of them, but was never disciplined. That plus the timing of his discharge--his first day back--was enough to create a genuine issue of material fact on the reason for his termination.

Post amendment implications: Miller likely had to go with the "regarded as" prong for his ADA case because he might not have been considered disabled under the definitions that had been established under the statute. Under the amended version, he likely would be considered disabled from working at a broad class of jobs his training suited him for, or perhaps from maintaining cognitive and appropriate physical functions regardless of height. The expansive definition of a disability and the explicit inclusion of working as a major life activity would likely cover him, making the regarded as claim unnecessary. If Miller was only regarded as disabled, though, he might have a problem under the amendments. The duty to accommodate does not seem to apply to individuals who are only regarded as disabled, and so if Miller was only regarded as disabled under the amendments, he would not be entitled to an accommodation that he be relieved from some of the duties of the bridge crew. Still, the essential functions and reasonable accommodations analysis (if he would be disabled under the amendments) gives some guidance to how those should be analyzed under the amendments, since they did not change.

Hat tip: Mark Weber

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Putting "Reasonable" Back in "Reasonable Restraint"

The last time I encountered a Judge Moon opinion, he had dismissed on Twomblygrounds a slip-and-fall case because the injured plaintiff hadn't plausibly pled that the grocery store knew of the spill that caused the plaintiff's injury. I kid you not.

The judge's latest opinion is even more problematic. McClain & Co., Inc. v. Carucci involved an employee who allegedly embezzled nearly $300,000 from his employer. After he left the company, the parties reached a settlement under which Carucci would pay  back almost all of that money. He also agreed not to compete with his by-then-former employer.

Needless to say, he then began competing, or so it's claimed. If you're wondering who would hire a alleged big-time embezzler, he seems to have founded a competing company with his grandfather. Proving yet again that blood's thicker than water.

When McClain filed suit, the defendant raised a  motion to dismiss based (1) on Twombly/Iqbal  and (2) the noncompete was enforceable as a matter of law.  As to the first point, Judge Moon thought it more plausible that an ex-employee would compete than he had that a grocery store might not clean up a spill immediately, a conclusion which is not intuitively obvious to me but maybe I just shop in the wrong stores.

The second point is more interesting to the present audience. According to Judge Moon, the claim could be judged by either of two standards -- a restrictive rule regarding noncompetes in the employment context or a more permissive rule for other restraints. After some discussion, the judge concludes that the noncompete at issue was best judged under the more liberal rule, and was therefore valid (or at least could be found so).

The judge, of course, got it entirely backwards.  The common law barred all restraints of trade -- subject to exceptions where one of the parties had a legitimate interest (i.e., an interest other than restraining competition). The employment relationship was one in which such interests might exist because employers sometimes have trade secrets or confidential information that is protectable.

Restraints of trade unclothed by such interests were said to be "naked" and automatically invalid. If, as claiemd, Carucci had established a competing business at the time of the agreement, the effect of the settlement agreement was to snuff out competition without the usual justification. (There's no indication that, prior to leaving McClain, Carucci had been subject to any kind of covenant not to compete).

Judge Moon's error was essentially to view the deal through a procedural lens -- he stressed the fairness of the bargaining process, that Carucci was represented by counsel, etc. But the rule against restraints on competition was designed to protect the public, not the restrained party (although sometimes the interests coincide), and the fact that an agreement is otherwise valid does not mean that the market is not deprived of the benefits of competition.

More technically, whether a restraint is "reasonable" turns on its relation to legitimate employer interests -- such as protecting confidential information.  Judge Moon never identifies what legitimate interest the noncompete in question serves.

The judge was deciding only a motion to dismiss. We can hope that the error is cured as the case goes forward.

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Upcoming Conference: Public Sector Employment in Times of Crisis

Anne Hodges (Richmond) sends up this save-the-date for a conference to be held at Richmond on September 9, 2011:

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• Conference:  Public Sector Employment in Times of Crisis
• Sponsored by the Labor Law Group, the American Constitution Society for Law and Policy and the University of Richmond School of Law
• Location:  University of Richmond School of Law, Richmond, VA
• Program:  In response to the current economic crisis, many state and local governments have focused on public employment.  Public employees have been down-sized and furloughed.   Newly-elected administrations have proposed, and in some cases passed, legislation restricting collective bargaining, requiring public employees to pay more for pensions and health insurance, and eliminating or restricting tenure for teachers.  Debate has raged about the pay and benefits of public employment compared to private and the impact of teacher tenure and evaluation systems on education reform.  Public sector unions have been vilified as a major contributor to the government’s financial problems.  At the same time, unions and employees have fought back, countering these arguments with their own data and engaging in widespread protests against efforts to limit their rights.

The goal of the conference is to bring together experts on the issues relating to public employment that have been the focus of political debate.  The program will generate both information and discussion to inform the debate about how to respond to reduced governmental revenue in a manner that will preserve necessary government services and ensure that they are provided efficiently and effectively to preserve public health, safety and welfare.

Speakers will address public employee compensation, the role of teachers in public education reform, public sector collective bargaining, both existing models and recent changes, job security and termination of public employees, and the constitutional framework of public employment.

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Recently Published Scholarship

• Whitney Cloud, State Pension Deficits, the Recession, and a Modern View of the Contracts Clause, 120 Yale L.J. 2199 (2011).
• Diana M. Link & Richard A. Bales, Waiving Rights Goodbye: Class Action Waivers in Arbitration Agreements After Stolt-Nielsen v. AnimalFeeds International, 11 Pepperdine Disp. Resol. L.J. 275 (2011).
• Christopher J. Diehl, Open Meetings and Closed Mouths: Elected Officials' Free Speech Rights After Garcetti, 61 Case Western Res. L. Rev. 551 (2010).
• Lindsey E. Sacher, Through the Looking Glass and Beyond: The Future of Disparate Impact Doctrine under Title VII, 61 Case Western Res. L. Rev. 603 (2010).
• Shaili Pezeshki, The FMLA and its Shortcoming: Can Your Supervisor Wrongfully Terminate Just Because You Work in a Public Agency?, 40 Southwestern L. Rev. 551 (2011).
• Moshe Zvi Marvit, On the Greatest Property Transfer that Wasn't: How the NLRA Choase Employee Rights and the Supreme Court Chose Property Rights, 38 Southern U. L. Rev. 79 (2010).

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Recently Published Scholarship: Comparative Labor Law & Policy J.

Comparative Labor Law & Policy Journal
Volume 32, Number 3, Spring 2011
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PAPERS IN HONOR OF CLYDE SUMMERS:

• Roger Blanpain, Remembering Clyde Summers, p. 493.
• Matthew W. Finkin, Clyde Summers:  Disturber of the Legal Order, p. 497.
• Robert A. Gorman, The Legacy of Clyde Summers, p. 501.
• Kazuo Sugeno, My Teacher Clyde Summers, p. 505.
• Manfred Weiss, Clyde W. Summers:  A Giant of Comparative Labor Law, p. 511.

GOOD FAITH AND FAIR DEALING IN THE INDIVIDUAL EMPLOYMENT RELATIONSHIP:

• Andrew Stewart, Good Faith:  A Necessary Element in Australian Employment Law?, p. 521.
• Kevin Banks, Progress and Paradox:  The Remarkable yet Limited Advance of Employer Good Faith Duties in Canadian Common Law, p. 547.
• Christophe Vigneau, The Obligation of Good Faith in France, p. 593.
• Berd Wass, Good Faith in the Law of the Employment Relationship:  Germany, p. 603.
• Dimitrios Kremalis, Good Faith in Greek Employment Law, p. 631.
• Sharon Rabin Margalioth, Regulating Individual Employment Contracts Through Good Faith Duties, p. 663.
• Gordon Anderson, Good Faith in the Individual Employment Relationship in New Zealand, p. 685.
• Alan L. Bogg, Good Faith in the Contract of Employment:  A Case of the English Reserve? p. 729.
• James J. Brudney, Reluctance and Remorse:  The Covenant of Good Faith and Fair Dealing in American Employment Law, p. 773.

BOOK REVIEWS

• Bob Hepple & Bruno Veneziani, editors, The Transformation of Labour Law in Europe:  A Comparative Study of 15 Countries, 1945-2004, p. 809.
• Sebastian Krebber, reviewer, "The Grandy Duchy, Tucked Between Belgium, France and Germany...":  Some Thoughts Upon the Methodology of Bob Hepple & Bruno Veneziani, The Transformation of Labour Law in Europe, p. 811.
• Achim Seifert, From the Making to the Transformation of Labor Law in Europe, p. 825.
• Bob Hepple & Bruno Veneziani, Is Comparative Labor Law Simply About Engineering? p. 835.

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Professor Mitch Rubinstein: My 13 Year Old Daughter Needs A Kidney. Can you help?

What follows is an unusal post for this blog, but one I that I feel very strongly that I circulate to the larger labor and employment law professor community. 

Mitch Rubinstein, blogger at Adjunct Prof Blog who has taught labor law courses at St. John's and New York Law School over the years, has put out the following urgent request for assistance with regard to a medical need for his daughter.   As part of our virtual community here on the blog, I hope that we can provide ideas, resources, and suggestions for Mitch and his family during this difficult time.

My 13 year old daughter (seen here in the blue with her 15 year old sister Mollie (in pink) with my wife Lisa) has a genetic Kidney disease and now needs a Kidney transplant.

In the process of being evaluated to be a donor, it was discovered that I have Kidney disease (polycystic Kidneys) and cannot donate. My wife's blood type does not match. Our other daughter is too young to donate.

Linda's blood type is "O." We are looking for a doner with "O" blood type. If your type "O," other blood tests need to be performed to see if your a match.   

If you think you can help out, please contact me at [email protected]. 

If your unable to be a donor, but know someone that might be, I would appreciate if you could pass this information along.

Linda's sister created a Facebook page entitled My Little Sister Needs A Kidney which provides additional information about Linda. 

Thank you very much for caring.

Mitchell Rubinstein

Morantz: Union Status Correlates with Coal Miner Safety

Alison D. Morantz (Stanford) has just posted on SSRN her article Coal Mine Safety: Do Unions Make a Difference?.  The article is pariticularly well-timed, having been posted on the same day as the release of this Report concluding that the 2010 explosion at Upper Big Branch Mine, in which 29 miners died, was the result of pervasive safety violations by mine owner Massey Energy.  Here's the abstract:

Although the United Mine Workers of America (UMWA) has always advocated strongly for miners’ safety, prior empirical literature contains no evidence that unionization reduced mine injuries or fatalities during the 1970s and ‘80s. This study uses a more comprehensive dataset and updated methodology to examine the relationship between unionization and underground, bituminous coal mine safety from 1993 to 2008. I find that unionization predicts a substantial and significant decline in traumatic mining injuries and fatalities, the two measures that I argue are the least prone to reporting bias. These disparities are especially pronounced among larger mines. My best estimates imply that overall, unionization predicts an 18-33% drop in traumatic injuries and a 27-68% drop in fatalities. However, unionization is also associated with higher total and non-traumatic injuries, suggesting that injury reporting practices differ substantially between union and nonunion mines. Unionization’s attenuating effect on the predicted frequency of traumatic injuries seems to have grown since the mid 1990s.

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When is an action taken because an employee is black not because of race? While many of us would have thought the answer was never, the Tenth Circuit recently disagreed. Apparently, it's not race discrimination if you're firing a black to avoid a reverse discrimination suit by a white.

The facts in Crowe v. ADT Security Services are pretty straightforward. Plaintiff seems to have been a pretty troublesome employee, or at least his co-workers thought so. He was the target of a number of complaints, including sexual harassment allegations. Prior conduct had resulted in more than one "last chance" letter. So when he was finally fired, he was an unappealing plaintiff. It's true that he claimed that some or all of the co-worker complaints were false, but the "honest belief" rule, which the court cited, seemed to make that irrelevant.

The twist was a memo
written by HR representative Laurila, who was " tasked . .. with resolving the situation." The memo said:

The ramifications of not terminating Wythe Crowe could be huge! Think about this: What if a white male exhibits the same harassing, insubordinate, discriminatory, and disrespectful behavior as Wythe has done over the years. If we decide to fire this person, we have now set ourselves up for a reverse discrimination lawsuit. For that matter, since we have allowed Wythe to exhibit this type of behavior for many years, it does not matter whether the next person is white, yellow, or pink, we are setting ourselves up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.

Now, admittedly, Laurila thought there was plenty of reason to fire Crowe before she got to the reverse discrimination argument.  So maybe it was just icing on the cake. But the causation issue would seem to be a jury question at least given that Laurila apparently thought that her race-neutral reasons might not do the trick. Why else make the argument? One would think that a jury could find a motivating factor here, maybe even a determinative factor.

Not the Tenth Circuit:

However, the report, even when viewed in the light most favorable to Mr. Crowe, simply does not exhibit hostility to Mr. Crowe based upon his race. . . . The report merely discusses ADT's potential exposure to lawsuits based upon a failure to enforce its policies on a consistent basis, without regard to race. We need not expound on how the requisite discriminatory animus may be shown, but the report here is insufficient. 

OK, maybe the report doesn't indicate "hostility" based on race, but that hasn't been the standard for at least 30 years. The question we usually ask is, was the action based on race? And the answer seems to be yes.

One explanation for the result might be the offenses in question. Laurila's memo framed the debate as sex vs. race. The preceding paragraph in her memo asked

[W]hy have we allowed Wythe to treat management and specifically, women in positions of power, with such disrespect? Why did ADT continue to try to appease this person and not support or protect our management team from this type of harassing and disrespectful abuse? This behavior is against the law at any company in this country. Why do we allow it here at ADT? If Heather England took this case to the EEOC or to court, ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.

But Laurila is wrong in one respect: the courts have been unanimous in holding that an employer does not lose its affirmative defense by not firing a harasser. Of course, a company may fire serial harassers, and maybe should, but the question remains whether Crowe was fired because he was black. 

Of course, there is another possibility that the court doesn't acknowledge but might also explain its result: Laurila's point is that Crowe has been given a free pass for years because of his race, and it is now time to treat him as the company would any other employee. Factually, that would again seem like a jury question. Conceptually, it poses the problem of whether "leveling the playing field" which was racially tilted is action because of race.

If all this is confusing, compare Crowe to Wilkerson v. Columbus Separate School District, where the court found that a white coach created a jury question of discrimination when he showed that board members asked for his discharge for misconduct because a black coach had been recently fired: "You got the black, now you are going to get the white." 

 

CAS

 

 

Reminder -- Forum Proposals Due June 1st

Just a reminder that Seton Hall's Sixth Annual Employment & Labor Law Scholars' Forum will be held this October and that junior scholars' proposals are due Wednesday, June 1, 2011. They should be 3-5 pages in length and submitted to me at [email protected]. 

CAS

Another NLRB Facebook Case

The NLRB has just announced that it has another complaint involving Facebook.  Much like the earlier case, which caught a significant amount of attention, this case isn't that novel aside from the collective action happening to involve social media.  According to the Board's description:

The National Labor Relations Board has issued a complaint alleging that Hispanics United of Buffalo, a nonprofit that provides social services to low-income clients, unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The complaint was issued May 9 by Rhonda Ley, NLRB Regional Director in Buffalo, New York.

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. After learning of the posts, Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.  Unless the case is settled, the complaint will be the subject of a hearing before an administrative law judge on June 22, 2011, in the Buffalo office of the NLRB.

Even more than the previous case, there doesn't seem to be a lot of legal issues here.  There is perhaps an argument that the intitial posting isn't protected, but the following messages seem classic concerted and protected communications.  The one question I have is whether they used any of the employer's equipment or networks, which could raise a Register-Guard problem.  Barring that, this seems to come down to whether the GC can prove its allegations about why the terminations occurred and whether there really was enough harassment to render the communications unprotected.

-JH

Pace L. Rev. Call for Papers

Sarah Saville, Executive Articles Editor for the Pace Law Review, sends us this call for papers:

The editors of the Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to an issue slated for publication during the Fall of 2011. This issue focuses on the changing landscape of Labor and Employment in the modern market. We hope to publish articles that examine the changing legal employment landscape including commentary on the viability of the traditional law firm model and the billable hour, the effect of the internet on multijurisdictional practice, and how attorneys should expect the practice of law to continue transforming in the next ten to fifteen years. In addition, we are also soliciting articles discussing the impact of current events on labor law. Current events may include the bills passed in Wisconsin and Ohio limiting collective bargaining rights of unions, the effect of government funding and politics on labor negotiations, and the renegotiation of the collective bargaining agreements for each of the four major sports leagues in the United States within the next year. If you have an article idea that fits within the employment or labor realm more broadly than the examples provided above, we encourage you to still submit your proposal for consideration as we are interested in scholarly discourse and are not strictly confined to the above mentioned events.

Please submit proposals of no more than 500 words by attachment to [email protected] by June 1, 2011. If you already have a completed article or an article in progress, you may submit the piece with an abstract of no more than 500 words describing the work. We welcome proposals for articles, essays, and book reviews. All proposals should include the author's name, title, institutional affiliation, contact information, and should concern issues related to the subject matter described above. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g. the reviewer's expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 17, 2011. Completed manuscripts of scholarly articles and book reviews will be due August 19, 2011.

rb