Friday, September 30, 2011
Ann McGinley (UNLV) has just posted on SSRN her article (forthcoming Nevada L.J.) Ricci v. Destefano: Diluting Disparate Impact and Redefining Disparate Treatment. Here's the abstract:
Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.
Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than disparate impact. Simultaneously, it appears to broaden the disparate treatment theory, but this new interpretation of disparate treatment is selective: it expands the definition of discriminatory intent to include any overt consideration of a protected characteristic. By its literal interpretation of intent - intent means any conscious, explicit consideration of race in making employment decisions - it appears to disregard unconscious discrimination or implicit bias as supporting a possible cause of action under disparate treatment law. These changes make Ricci one of the worst recent cases decided by the Supreme Court. Ricci sanctions finding discrimination against white men who have been privileged by history and structure of the fire department while simultaneously ignoring the history and practices that led to the low numbers of minority men in supervisory positions in the fire department. It also appears to credit obvious and explicit discrimination over the less obvious but implicit biases caused by structures and attitudes that hinder the progress of women and minority men in the workplace.
Stephen Blakely (EBRI) has just posted on SSRN his article Is There a Future for Retirement?. Here's the abstract:
This paper summarizes the presentations and discussions at the Employee Benefit Research Institute’s May 12, 2011, policy forum, on the topic: “Is There a Future for Retirement?” This was EBRI’s 68th policy forum held in Washington, DC, and was attended by about 120 policy and professional experts. The EBRI Retirement Readiness Rating™ finds that many individuals will need to keep working past normal retirement age in order to have sufficient resources to pay the bills; said another way, they have insufficient resources, even including Social Security and Medicare, to pay their bills. Many articles and papers have been written in recent years suggesting that working an extra two or three years would solve the problem for most people, but this has not been well documented or quantified. But will it be enough if workers simply stay on the job just a few extra years? New EBRI research presented at this May 2011 policy forum addressed that question with comprehensive data from its Retirement Security Projection Model.® These findings, presented by EBRI’s research director and published in the June 2011 EBRI Issue Brief, show that if Baby Boomers and Gen Xers delay their retirement past the age of 65, many of them still would not have adequate income to cover their basic retirement expenses and uninsured health care costs -- especially low-income workers. Even if workers delay their retirement age into their 70s, there is still a chance the household will be “at risk” of running short of money in retirement. A speaker from Callan Associates presented research showing the impact of automatic features in 401(k) plans on retirement income adequacy, as well as data on the impact of “leakage” of savings in 401(k) plans (such as through cash-outs at job change, hardship withdrawals, and loans). Other speakers suggested that retirement plan sponsors should provide workers with more help in investing, since many workers will not be able to save more money or retire later, and that workers could improve their financial security by better asset management -- in particular by cutting debt and using guaranteed income products such as life annuities to manage longevity risk. A variety of speakers touched on how a substantial number of Americans will not be able to work longer than traditional retirement age even if they want to because of layoffs, mergers, or poor health.
Thursday, September 29, 2011
"Don't think of it as losing your job. Think of it as a time-out between stupid bosses."
"Is there anywhere I could hack up a hairball, like say, on a former employer's head?"
"Losing your job does not define you. What you do about it does."
LaborRelated has the scoop on an an NLRB ALJ decision, Knauz BMW, released yesterday. This is the case in which a car salesperson used facebook to disparage the food (hot dogs) served at his employer's promotional event. The ALJ determined that the employee had engaged in protected concerted activity on facebook, but was fired for other, unprotected facebook activity.
Wednesday, September 28, 2011
On September 13, 2011, the Department of Labor Administrative Review Board (ARB) issued an opinion in Menendez v. Halliburton, Inc., another opinion in a long line of opinions this year and last year that affirm broad protections for Sarbanes-Oxley Act (SOX) whistleblowers. The ARB reversed the decision of the Administrative Law Judge, finding that the reporting of questionable accounting practices in this case was a protected activity even when the whistleblower was mistaken. The ARB also ruled that the disclosure of the whistleblower’s identity – even though coworkers would eventually find out anyway – was an adverse employment action. In addition, the whistleblower need only show that the protected activity was a contributing factor in the employer’s decision to take the adverse action – a very low hurdle.
Importantly, the ARB further expanded protections for whistleblowers by removing from consideration Title VII case law that may have produced narrow exceptions to whistleblower protection. The ARB formally adopted the Williams standard, which states that any nontrivial unfavorable employment action is an adverse action, but curiously the ARB also retained the Title VII Burlington Northern standard as a persuasive interpretive tool.
- Andreas N. Akaras & Sebastian G. Amar, A View From the Front Lines: Why Protecting Immigrant Workers is Essential for Immigration Reform and Vital to the Maintenance of a Healthy American Workforce.
- Fedline Ferjuste, The Agricultural Worker Protection Act & Florida's Migrant Worker: The Hands That Feed Florida
- Peter Asaad, E-Verify: Chamber of Commerce v. Whiting
- Elizabeth Keyes, Immigrant Workers' Rights: Beyond the Scope of Traditional Labor & Employment Law
- Alexander M. Bard, Strength in Numbers: The Question of Decertification of Sports Unions in 2011 and the Benefit of Administrative Oversight
PDF versions of all of the articles are available on the Forum's website at: www.aulaborlawforum.org
Laura Cooper (Minnesota) sent me word of this, and I'll admit that it took me awhile to figure out what was going on. Here goes:
The LMRDA imposes reporting requirements (including the disclosure of fees and expenses) whenever an employer hires a consultant to "persuade" employees regarding their organizing and collective-bargaining rights (i.e., whenever an employer hires a "union-busting" firm). LMRDA Section 203 creates an exemption for "advice" or representation before a court, agency or arbitral tribunal, or in collective bargaining.
Over the years, and especially following a 2001 Department of Labor interpretation of Section 203, the exception came to swallow the rule -- it would exempt an employer from the reporting requirement any time the employer was "free to accept or reject" materials provided by the consultant -- which of course was almost always.
In June 2011, the DOL proposed a new interpretation of Section 203 that would substantially narrow the exemption. The proposed interpretation provides:
With respect to persuader agreements or arrangements, "advice" means an oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, "persuader activity" refers to a consultant's providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.
The proposal also provide examples of reportable and non-reportable agreements or arrangements:
Reportable agreements include those in which a consultant agrees to plan or orchestrate a campaign or program on behalf of an employer to avoid or counter a union organizing or collective bargaining effort..., or otherwise engages on behalf of the employer, in whole or part, in any other actions, conduct, or communications designed to persuade employees.... No report is required concerning an agreement or arrangement to exclusively provide advice to an employer, such as when a consultant exclusively counsels employer representatives on what they may lawfully say to employees, ensures a client's compliance with the law, or provides guidance on NLRB practice or precedent.
Unsurprisingly, the AFL-CIO supports the new interpretation. The American Bar Association, however, opposes the new interpretation, at least to the extent that the new interpretation will apply to lawyers. The ABA's argument is that the restriction on the exemption unduly interferes with the relationship between the management-side lawyers and their corporate clients.
Now, as Laura points out, there's a fight brewing between the AFL-CIO lawyers and the ABA over the proposed new interpretation.
Monday, September 26, 2011
University of Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?
I am excited to announce that the University of Wisconsin Law School (where I am visiting this semester) is presenting a labor law conference that I am co-organizing with Professor Carin Clauss. The conference will be held on October 27th and 28th in Madison and is entitled: The Constitutionalization of Labor and Employment Law?
The five panels of the conference are divided into separate areas of constitutional law, including: (1) Freedom of Speech; (2) Freedom of Association; (3) Equal Protection; (4) The 13th Amendment; and (5) Workplace Privacy under the Fourth Amendment.
Panelists include: Cheryl Harris (UCLA); Sophia Lee (Penn); Marcia McCormick (St. Louis); Susan Carle (American); Maria Ontiveros (San Francisco); Jim Pope (Rutgers-Newark); George Rutherglen (Virginia); Julie Chi-hye Suk (Cardozo); Lea Vandervelde (Iowa); Leonard Bierman (Texas A&M); Rafael Gely (Missouri); Susan Freiwald (San Francisco); Pauline Kim (Wash U); Marty Malin (Chicago-Kent); Roy Adams (McMaster (Canada)); Ken Dau-Schmidt (Indiana); Sam Estreicher (NYU); Mark Tushnet (Harvard); Scott Bauries (Kentucky); Mike Harper (BU); Dan Kahan (Yale); Kim Roosevelt (Penn); and Randy Kozel (Notre Dame).
It is a great collection of speakers and I hope many of you can come. There is special registration for full-time members of academia. For more information about registration and other information, please check out the conference web page.
- Some pretty bad conditions in an Amazon warehouse, mainly related to excessive heat. OSHA also managed to have some impact, albeit with limits. One lingering question: will the heavy use of temp employees there be able to ward off a union drive? Because the place sounds ripe for one.
- Steven Greenhouse on the ways that Citizens United may increase unions' political clout. It will be interesting to see how this plays out, particularly whether some of the more far-reaching changes that are possible (e.g., see this piece by Charlotte Garden (Seattle)) will come to pass.
- Labor organizations are getting active in post-revolution Egypt. Increased strike activity, and the government's uncertainty of how hard to push back, is the primary issue.
- Former NLRB Member Peter Schaumber now an advisor to Mitt Romney's presidential campaign. Also on board is Boeing's lead counsel for the case brought by the NLRB's GC.
- The AEA obtains an injunction against a new Arizona law that restricted payroll deductions for certain unions, but did not restrict deductions for public safety and other unions. The judge agreed with the AEA that the different treatment of unions caused First Amendment problems.
Hat Tips: Michael Duff & Patrick Kavanagh
- Karen Halverson Cross, Letting the Arbitrator Decide Unconscionability Challenges, 26 Ohio St. J. Disp. Resol. 1 (2011).
- Douglas E. Ray, The Dean's Role in Building a Positive Workplace Environemnt, 42 U. Toledo L. Rev. 657 (2011).
Sunday, September 25, 2011
EGT built a new grain terminal in Longview, WA. It negotiated with the ILWU to supply labor for the terminal, but then instead contracted with General Construction Co. to staff the terminal using workers from a different union. ILWU folks are not one bit happy and have, among other things, held security guards hostage, dumped grain, and damaged railroad cars (see these AP and J. Commerce articles). The NLRB (Region 19) has obtained an injunction, a TRO, and a contempt order against the ILWU. Region 19 is the Region that also is handling the Boeing litigation. Nicholas Ohanesian points out that it's more than a little ironic that the same folks criticizing Region 19 as "biased toward labor" seem to have overlooked Region 19's actions against the ILWU.
Even as many public-sector state pension systems report record underfunding, legislators in most states have passed generous pension rules conferring extra-special benefits on themselves. Examples include rules that artificially inflate salaries, permit double-dipping, allow very-early retirement, and the like. Edward Zelinsky (Cardozo) is interviewed on the subject in this USA Today article.
Wednesday, September 21, 2011
Curacao is a newly devolved independent country in the Carribbean. Folks on the International Committee of SEALS, recognizing that devolution of governance (Libya, South Sudan, etc.) presents lots of interesting legal scholarship opportunities, is in the process of organizing a 5 day faculty group research mini-conference in and on Curacao. Details (courtesy Patrick Hugg, Loyola New Orleans) follow the break; Wendy Greene (Cumberland) and I (Rick Bales, NKU) are members of the Committee, though I'm a newbie so Wendy's more in-the-know). Anyone interested putting together a labor/employment panel and, perhaps, co-authoring an article?
Tuesday, September 20, 2011
Last Friday, the Ninth Circuit issued the first appellate court opinion that I've run across applying Wal-Mart v. Dukes to an appeal of class certification. (Earlier in the month, a district court had applied Wal-Mart to deny class certification in a discriminatory lending case against Wells Fargo--that's the only other case I know about). The Ninth Circuit case, Ellis v. Costco, was very similar to Wal-Mart: a nationwide class action against a big box store, this time Costco, by women who alleged that the company discriminated against women in promotions. The district court had certified the class, and the Ninth Circuit reversed, holding that the court had not applied the correct test.
Here's the bottom line:
(1) Because at least one named Plaintiff [a current employee] alleges a concrete injury that is both directly traceable to Costco’s allegedly discriminatory practices and is redressable by both injunctive relief and monetary damages, . . . we affirm the district court’s ruling on standing. (2) We vacate and remand the district court’s ruling as to “commonality” under Rule 23(a) of the Federal Rules of Civil Procedure. The district court failed to conduct the required “rigorous analysis” to determine whether there were common questions of law or fact among the class members’ claims. . . . Instead it relied on the admissibility of Plaintiffs’ evidence to reach its conclusion on commonality. (3) We vacate the district court’s ruling as to “typicality” under Rule 23(a), because the district court failed to consider the effect that defenses unique to the named Plaintiffs’ claims have on that question. . . .(4) We affirm the district court’s ruling that [the current employee] is an adequate class representative under Rule 23(a). As a current employee who continues to be denied promotion, [she] has incentive to vigorously pursue injunctive relief as well as monetary damages on behalf of all the class members. . . . However, we vacate the district court’s finding that [two former employees] could adequately represent the class, because they were former employees and had no incentive to pursue injunctive relief. (5) In light of Wal-Mart’s rejection of the “predominance” test, . . .the district court must consider whether the claims for various forms of monetary relief will require individual determinations and are therefore only appropriate for a Rule 23(b)(3) class. Thus, we vacate the district court’s certification of the class under Rule 23(b)(2).
On the commonality question, the plaintiffs faced some of the same battles as faced by the plaintiffs in Wal-Mart; in that the alleged discrimination may have occurred at least in part through the operation of gender stereotyping by individual store-level decisionmakers rather than through operation of a clear policy that sanctioned discrimination or decisions made at the headquarters level. After Wal-Mart, this conclusion is not very surprising, and on remand, there will be a number of hard questions to answer about who made the decisions and how those decisions were shaped.
The Ninth Circuit also considered whether the named plaintiffs could satisfy 23(a)'s typicality requirement. Costco asserted that it had unique defenses for each of the named plaintiffs, and those unique defenses would damage the interest of the other members of the class by dominating the issues. Those unique defenses were: one former employee wasn't promoted because she asked to defer promotion; the other former employee was unqualified and chose to transfer to a store with limited promotional opportunities; and the current employee was not as qualified as other applicants and didn't work in a region in which women were underrepresented in promotions. The Ninth Circuit did not conclude that these defenses were different from the defenses to liability for other class members--in fact, they sound very typical of the usual defenses to me, such that finding them atypical would mean that there could never be a class action in a discrimination case--but because the district court hadn't really considered the issue at all, the Ninth Circuit remanded for new consideration.
On the question of certification under 23(b), the Ninth Circuit's analysis was fairly limited to ordering reconsideration based on the test announced in Wal-Mart. The important piece that the opinion added was a note about punitive damages. The Ninth Circuit suggested that a claim for punitive damages connected to a claim for injunctive and declaratory relief might be permissible under 23(b) even though the punitive damages are monetary. The reason is that the test for punitive damages focuses on the actions of the employer and the employer's state of mind; individual defenses, and facts about individual cases will not be an issue.
Overall, not too surprising after Wal-Mart. The hard work is for the district judge on remand.
Our own Paul Secunda (Marquette; visiting Wisconsin) has just posted on SSRN his article The Constitutional Infiltration of Public and Private Workplace Privacy Law. This article builds on the impressive array of articles Paul has written on public-sector workplace speech/privacy, and here extends his analysis to the private sector. Here's the abstract:
One of the more pressing questions in this age of workplace technological innovation concerns how much privacy employees should have in physical and electronic locations in the workplace. An important related question is whether public sector and private sector employees, who have different legal status under the federal constitution’s state action doctrine, should enjoy the same level of workplace privacy rights. Recently, in the Fourth Amendment workplace privacy case of City of Ontario v. Quon, the United States Supreme Court considered both of these questions. Quon involved alleged privacy violations by a city police department when it conducted an audit of text messages on an officer’s city-issued pager.
In a cryptic decision, Justice Kennedy held for a unanimous court that assuming, without deciding, the employee had a reasonable expectation of privacy in the pager, the city's search of the pager was reasonable under two possible legal tests. First, under the plurality test enunciated in O’Connor v. Ortega, it was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Second, under the test outlined by Justice Scalia in his concurring opinion in that same case, it was reasonable because it would be considered “reasonable and normal” in the private sector workplace. To varying degrees, both of these analyses suggest that workplace privacy in the public and private sectors should be treated the same.
Rather than elevating private-sector privacy rights to the public-sector level, however, Quon suggests that public employee workplace privacy rights should be reduced to the level of employees in the private sector. In this manner, the Court has employed constitutional concepts counter-intuitively to decrease the level of privacy protections for public sector workers. Maintaining that public sector workers are entitled to greater levels of privacy protections based on the text of the constitution, the power of the government as employer, and the critical oversight role public employees play in American democracy, this article argues for a two-step workplace privacy analysis which first focuses on the purpose of the search and then applies presumptively the Fourth Amendment’s warrant requirement to those searches undertaken for investigatory purposes.
Saturday, September 17, 2011
Reports are out that the UAW and GM have reached a tentative new deal. Reflecting the improving conditions of US automakers, the terms look pretty good for the union--important because the UAW will presumably use the four-year GM agreement as a starting point for its upcoming negotiations with Ford and Chrysler. Among the reported terms are $5,000 bonus for workers (in lieu of raises, except for entry-level workers who will get $2-3 more an hour), more profit-sharing, no cuts in health and retirement benefits, and the promise to reopen the Spring Hill, TN plant (formerly of Saturn fame) and possibly other expansions of the job force.
The union is expected to seek ratification from workers over the next couple of weeks. I don't have a good sense of the UAW's membership, but I have a hard time imagining that this deal will face a serious threat of not being ratified.
Wednesday, September 14, 2011
I am considering putting together a course or seminar on labor & employment law issues in the health care industry, and I was wondering if a course like that is offered anywhere?
My list of potential topics includes, among others,
1. special treatment of unions in the industry regarding how unions organize, appropriate bargaining units, the right to strike, etc.
2. unionization of doctors in HMOs, and of interns and residents generally (i.e., are they students or employees?)
3. "conscience rules" re: employees who don't want to provide abortion services, fill birth control or morning after pill prescriptions, etc.
4. hospitals as federal contractors for affirmative action purposes
5. whistle blower protection for blowing the whistle on poor patient care, or on medicare fraud, etc.
6. FLSA protection (or not) for interns, residents, nurses, home health workers, etc.
7. doctors' hospital privileges
8. non-compete clauses and other employment law issues in doctors' practices
9. OSHA issues in hospitals, e.g., infectious disease regs, lifting injuries, exposure to toxics, etc.
10. medical staff governance and bylaws.
I'm interested in finding out what if any topics I should have on my list but don't, and what if any syllabi or teaching materials may be out there.
If you have ideas or materials to share, you can contact Michael at firstname.lastname@example.org
I'm very much looking forward to seeing everyone at the 2011 labor & Employment Law Colloquium, hosted by Michael Waterstone (Loyola-L.A.), Gowri Ramachandran (Southwestern), and Noah Zatz (UCLA). Here's the star-studded line-up of speakers.