Friday, August 31, 2012
Mitchell Rubinstein writes over at Adjunct Prof Blog that Rhode Island has passed a law outlawing discrimination against the homeless. With Mitch's permission, I'm cross-posting it here:
Rhode Island has enacted a state law which outlaw discrimination against the homeless. Among the important provisions, homeless individuals have the following rights:
- The right not to face discrimination while seeking or maintaining employment due to lack of a permanent mailing address or a mailing address that is a shelter or social service provider.
- The right to use and move freely in public spaces (sidewalks, public parks, public transportation, public buildings) in the same manner as any other person and without discrimination on the basis of housing status.
- The right to emergency medical care free from discrimination based on housing status.
- The right to vote, register to vote and receive documentation necessary to prove identity for voting without discrimination due to housing status.
- The right to protection from disclosure to law enforcement agencies without appropriate legal authority any records or information provided to homeless shelters and service providers and the right to confidentiality of personal records and information in accordance with limitations on disclosure established by the Federal Homeless Management Information Systems, the Federal Health Insurance Portability and Accountability Act and the Federal Violence Against Women Act.
- The right to a reasonable expectation of privacy of personal property to the same extent as personal property in a permanent residence.
- The right to equal treatment by all state and municipal agencies, without discrimination on the basis of housing status.
The claims were all dismissed by the UK courts amidst much controversy. As a quick reminder, they are (1) Lillian Ladele who lost her job as a registrar after her employer required her to register civil partnerships (she refused due to her Christian beliefs); (2) Nadia Eweida who was suspended by British Airways for wearing of a crucifix; (3) Shirley Chaplin who lost her job as a nurse after refusing to remove her crucifix when v necked tunics were introduced for staff and (4) Gary McFarlane who was dismissed as a relationship counsellor because his employer believed he would not provide counselling to same sex couples.
Mike Maslanka writes over at Work Matters about Salz v. Casey's Marketing Co. (N.D. Iowa), which interpreted a provision of the Patient Protection and Affordable Care Act that requires employers to provide female employees a place other than a bathroom to express milk for their infants. The court dismissed on 12(b)(6) a claim by a a woman that her employer failed to do so. The court held that the law does not provide a private right of action -- enforcement is only through the Department of Labor.
Health care reform devotes substantial attention to resuscitating the small group health insurance markets that serve employers with fewer than fifty full time employees. Unfortunately, a number of interweaving provisions embedded within the Affordable Care Act create strong incentives that, starting in 2014, will tend to undermine this market and, in the process, increase the fiscal cost of reform. First, small employers with predominantly low-income employees will tend to opt out of the small group market. Second, small employers with mixed-income employees will have strong incentives to offer coverage that is neither technically “affordable” or of “minimum value” in order to preserve the availability of premium and cost-sharing subsidies on the individual market for their low-income employees. Third, small employers with unusually low-risk employees will have strong incentives to self-insure any group plan they do offer in order to avoid cross-subsidizing higher-risk groups. Analyzing these risks collectively, this Article offers a number of recommendations for saving the small group market. For instance, it argues that the SHOP exchanges that are intended to organize the small group market in 2014 must strategically target the weaknesses of self-insurance by offering simple and risk-free coverage options that facilitate employee choice. They must also market this coverage aggressively in light of insurance brokers’ likely financial incentives to push self-insurance on small employers. Additionally, state and federal law makers should explore various possibilities for making small employers both more likely to offer group coverage and, if they do offer group coverage, to do so through SHOP exchanges rather than self-insured plans. Possibilities explored by this Article include amending the terms of the premium and small business tax credits, regulating stop-loss insurance, and imposing various restrictions or penalties that are aimed at preventing churning between the self-insured and small group markets.
Jamie Prenkert (Indiana - Business), Julie Magid (Indiana - Business), and Allison Fetter-Harrott (Franklin College) have jsut posted on SSRN their article (forthcoming N.C. L. Rev.) Retaliatory Disclosure: When Identifying the Complainant Is an Adverse Action. Here's an excerpt from the abstract:
Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation.
Thursday, August 30, 2012
The Chronicle has a story on yet another development at my university: Faculty Review Proposal at Saint Louis University Would Eviscerate Tenure. The proposed policy would institute a program of post-tenure review for all university faculty which would allow the university to terminate anyone (except administrators, adjuncts, faculty on leave, and faculty in the Medical Group or on our Madrid campus) who does not show "continuing and increasing effectiveness" in teaching, scholarship, and service -- a constant "positive trajectory."
This isn't the first time our president has suggested that faculty tenure or other job security is a bad idea, but it's the most comprehensive push to put that into effect across the university. And given recent and not so recent events, the standard seems all too easily abused to get rid of people with unpopular opinions. We'll have to see what happens.
One of my 1L students has asked me to review his facebook page and suggest items to cull to ensure the page does not offend prospective employers. I’m disinclined to review the student’s Facebook account line-by-line, photo-by-photo, and inclined instead to give some general advice. I’ll take my first shot below the jump, but would welcome comments to this post if you have additional advice to add or if you would advise differently.
An ABA Journal article quotes Paul Secunda (Marquette) as "speechless" that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee "liking" something or someone on Facebook is not protected First Amendment expression. The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.
[I]t is questionably sound to deny public employees the right to speak about matters of great public concern. "'Government employees are often in the best position to know what ails the agencies for which they work.'" Id. at 429 (Souter, J., dissenting) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). By diminishing the protections available to employee-speakers, Garcetti makes employees “less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.” Paul M. Secunda, Garcetti's Impact on the First Amendment Speech Rights of Federal Employees, 7 First. Amend. L.Rev. 117, 118 (2008).
The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, id. at 439–40, such speech often falls outside the narrow confines of whistleblower statutes. See Ruben J. Garcia, Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees, 7 First. Amend. L.Rev. 22 (2008) (detailing failures of statutory protections for government whistleblowers).
Wednesday, August 29, 2012
It's been a busy year on the public policy front. First, Kentucky recognizes a claim for discharge for possessing a gun on employer property and now Missouri finds a healthcare company in violation of its public policy exception to at-will employment when it discharges an employee for her volunteering to donate her kidney to her brother. Delaney v. Signature Health Care Foundation, 2012 Mo. App. LEXIS 694 (Mo. Ct. App. May 22, 2012). Putting aside the irony of a non-profit medical clinic firing its data clerk for such conduct, the case is interesting because of its take on what public policies count for the tort.
Obviously, the plaintiff was engaged in praiseworthy conduct, but that has not been sufficient in the past for most courts. But Missouri extends the exception to protect employees “acting in a manner [which Missouri public policy] would encourage,” as articulated in Delaney. The Court found the data clerk’s activity to be included since Missouri’s code:
(1) establishes an advisory committee to assist in developing organ donor awareness programs;
(2) requires the motor vehicle commission to ask registrants if they want to be organ donors;
(3) establishes a “Be an Organ Donor” license plate; and
(4) requires state employers to grant thirty-days paid leave for organ donors.
Reminiscent of the Kentucky decision, which also looked to a statute that explicitly provided protection to employees, #4 might well support a public policy claim – but only for public employees. Neverthless, the court found it evinced a broader public policy. In any event, the other three reasons, and the general notion of “encouragement” suggest a relatively easy threshold.
Maybe too easy to get any traction? One of the cases I often use in class to indicate the limits of the tort is a older Kentucky decision not finding going to law school protected. Scroghan v. Kraftco Corp., 551 S.W.2d 811, 812 (Ky. Ct. App. 1977) because it was not a matter “in which the community has a public interest,” and thus “attendance at night school was a private rather than a public concern.”
Surely, however, we could find some basis to conclude that society encouraged going to law school – education loans, tuition subsidies at public universities. Would the Missouri court go that far, or perhaps the life-and-death aspect of Delaney suggests a limitation on the “encouragement” notion.
Of course, in the current legal education environment, maybe law schools wouldn't be so unhappy to see an extension of the tort!
Probably Delaney is less significant in its own right than as another reminder that of the fluidity of public policy in the employment context. Interestingly, the case didn't generate much popular media publicity, for which the employer should be thankful.
Tuesday, August 28, 2012
Volume 29, No. 2 Spring 2012
- Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the Workplace: An Inaccurate Test of Impairment, p. 273.
- César F. Rosado Marzán, Punishment and Work Law Compliance: Lessons from Chile, p. 343.
- Kenneth Glenn Dau-Schmidt, Winston Lin, The Great Recession, the Resulting Budget Shortfalls, the 2010 Elections and the Attack on Public Sector Collective Bargaining in the United States, p. 407.
- Elizabeth Tippett, Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, p. 433.
- Blake R. Bertagna, The "Miscellaneous Employee": Exploring the Boundaries of the Fair Labor Standards Act's Administrative Exemption, p. 485.
- Roger B. Jacobs, Fits and Starts for Mandatory Arbitration, p.547.
- Jennifer Spellman & Jeannea Varrichio, Bad Reputation?: The Potential Negative Impact of Outsourcing on the Legal Profession, p. 575.
- Jacob Claveloux & Jon Stockman, Eastern Enterprises as the Canary in the Coalmine: Will the Supreme Court Hamper the Gulf Workforce by Continuing to Confuse the Constitutionality of Retroactive Liability Provisions?, p. 609.
Monday, August 27, 2012
In 2010, the NLRB upheld (2-1) a pre-recognition framework agreement in Dana Corp. The majority concluded that the agreement merely established groundrules for a possible post-recognition relationship, while the dissent argued that the agreement essentially locked in the union without majority support. The Sixth Circuit has just upheld the majority's ruling. The court didn't argue that one view or the other was best, but instead held that the outcome was within the Board's discretion. As someone who has often argued for more judicial deference to the Board (being a former NLRB appellate attorney no doubt plays into that), I applaud this result.
American Public Media's Marketplace has had a great series in the last week or so on salaries and people's attitudes about them. Today's interesting story provides data on its own recent survey of people's attitudes toward sharing information about their salaries. Lots of people don't want to share that information even to family, friends, and coworkers, much less outsiders. Other stories include one on how big employers set salaries and how the compensation market works.
This reluctance may be one reason why so many employers forbid employees from talking about their pay and why that doesn't get challenged even though it probably violates the National Labor Relations Act. Personally, I'm in favor of transparency and was very happy when my dean participated in SALT's annual salary survey this year. I wish there was more and wish there was more transparency for more jobs at my own school.
- Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012).
- Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Georgia L. Rev. 937 (2012).
- Alan Frank Pryor, Balancing the Scales: Reforming Deorgia's Common Law in Evaluating Restrictive Covenants Ancillary to Employment Contracts, 46 Georgia L. Rev. 1117 (2012).
- Xenia Tashlitsky, A Critique of Supplying the NLRB with Social Science Expertise Through Party/Amicus Briefs, 1 UC Irvine L. Rev. 1257 (2012).
Charlotte Garden (Seattle) and Nancy Leong (Denver) have just posted on SSRN this new article: So Closely Intertwined: Labor and Racial Solidarity.
Here is the abstract:
Conventional wisdom tells us that labor unions and people of color are adversaries. Commentators, academics, politicians, and employers across a broad range of ideologies view the two groups’ interests as fundamentally opposed and their relationship as rightfully fraught with tension. For example, commentators assert that unions capture a wage premium that mostly benefits white workers while making it harder for workers of color to find work; that unions deprive workers of color of an effective voice in the workplace; and that unions are interested in workers of color only to the extent that they can showcase them to manufacture the appearance of racial diversity.
Like much conventional wisdom, the narrative that unions and people of color are rivals is flawed. In reality, labor unions and civil rights groups work together to advance a wide array of mutual interests; this work ranges from lobbying all levels of government to protesting working conditions across the country. Moreover, unions improve the lives of both members and non-members of color, from bargaining for better wages and working conditions to providing services like job training and continuing education to under-resourced communities.
Accordingly, we aim to replace the conventional wisdom with a narrative that more accurately describes the occasionally complicated but ultimately hopeful relationship between labor and race. In developing this narrative, we anchor our conclusions in an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research. This extensive body of scholarship indicates that union membership has significant benefits for workers of color in the form of higher wages and improved benefits, more racially congenial workplaces, and deeper cross-racial understanding. We complement this robust scholarly literature with real-world examples of union success at improving the well-being of workers and communities of color. In contrast to many other commentators, then, our account is largely optimistic, though we emphasize that there is still work for the labor movement to do.
As the title suggests, this really important and timely article paints a largely optimistic (though occasionally complicated) picture of the relationship between labor unions and workers and communities of color. It also discusses the many narratives to the contrary, and some reasons for their persistence even as many unions have dramatically changed their orientation towards people of color.
As Charlotte and Nancy related to me, this new article builds on their past respective prior work -- Nancy's in Racial Capitalism (forthcoming in the Harvard Law Review), and Charlotte's in Labor Values are First Amendment Values (79 Fordham L. Rev. 2617 (2011)).
I have read both of the previous pieces (which were excellent) and this new article is a very original contribution to one of the most important issues today in labor law: how unions and people of color interact in a constructive way to advance their mutual civil rights agenda. Both groups need and depend on one another.
Needless to say, this is certainly worth a long read. Check it out!
Friday, August 24, 2012
From PJH Law:
An interesting legacy of the Olympic Games may involve London working practices. Many employers, during the period of the Games, embraced flexible working practices to allow employees to watch the Games and to avoid problems travelling to and from work. London law firms were amongst these. Such practices proved to be so successful that the Law Society are now encouraging law firms to adopt flexible working practices beyond the Games and have produced a protocol to assist firms. This includes practical advice, checklists and case studies demonstrating the business benefits and may be of interest to any employers (not just law firms) thinking of adopting such practices. This may not have been a legacy originally envisaged by Team Coe/Beckham etc but will be of significant impact nonetheless.
Thursday, August 23, 2012
As you might recall from our post at the time, the California General Assembly passed the California Domestic Workers Bill of rights, AB889. The bill is now before the California Senate, and the California Domestic Workers Coalition is urging people to take action in support if the bill. As part of that, Amy Poehler has made this PSA.
I love Ms. Poehler, not just because I think she's funny, but also because she's one of the creators of Smart Girls at the Party: Change the World by Being Yourself, a website and YouTube channel that provides a positive multidimensional message for and about girls.
We'll keep you posted on any news related to AB889.
Wednesday, August 22, 2012
Mike Maslanka (of Work Matters fame) has published in Texas Lawyer his predictions for how the two employment cases on the Supreme Court docket will come out, as well as his thoughts on what issues the Court should take up in its next term. See Hot Employment Law Issues at the High Court. This is worth a read.
Tuesday, August 21, 2012
Michael Z. Green (Texas Wesleyan University School of Law) has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail. Here is the Abstract: Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies. Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees. I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun. It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test. I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases. PS
Michael Z. Green (Texas Wesleyan University School of Law) has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail.
Here is the Abstract:
Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.
As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.
Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.
I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun. It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test. I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases.
It’s pretty well established that, for the antidiscrimination statutes at least, there’s no personal liability, (a position which has always seemed questionable to me but as to which I’m in the distinct minority). The effects of this rule, however, can be blunted if an employer can obtain indemnification from the supervisor responsible for the violation. Such efforts are rare, but they are not unknown, and a recent example illustrates the point. Howard University v. Watkins, 2012 U.S. Dist. LEXIS 58863 (D.D.C. April 27, 2012), denied a former assistant dean’s motion to dismiss the university’s claims of indemnification and fraud.
The case arose out of a disabilities discrimination claim brought against Howard by one Goodwin, which settled for $253,000 in damages and attorneys’ fees. The university had terminated Goodwin, on Watkins’s recommendation for what she claimed were his “behavior problems”; Howard claimed it would not have done so had Watkins revealed her knowledge of Goodwin’s HIV status and that she had denied him a requested accommodation.
Looking to common law indemnification arising from express or implied contracts, the court found that Watkins would be liable if Howard proved its allegations. The court also upheld Counts for fraudulent concealment, fraud, and misrepresentation. The distinction between the various Counts suggests that the defendant might have been liable even if she had not been guilty of fraud, perhaps the discrimination itself.
Under this case, then, the true perpetrator would be responsible for all harm caused by an act of discrimination, presumably not only any settlement or judgment paid by the employer but also the employer’s own costs of the defense of an action. To the extent that employers can utilize indemnification, problems of agents’ pursuing their own interests rather than those of their principal would be reduced.
So why don’t employers frequently resort to indemnification? The obvious reason is that they have the usual remedy of firing the supervisor rather than pursuing an expensive claim that may well lead to an uncollected judgment. Few former “acting assistant deans of students” will be able to pay quarter million dollar judgment, and pursuit of the claim itself is costly (the case was filed in Maryland in 2006 and still had not been tried in the District of Columbia when the opinion was handed down).
Then there’s the question of employee morale. Few universities would want their deans to fear that they may be on the hook for far more than their annual salaries. In Watkins itself, the employer may well have thought that the defendant’s conduct was so outrageous that few other supervisors would feel threatened by the lawsuit. There might also have been a felt need to back compliance and human resources divisions by taking action against a supervisor who Howard thought had pulled the wool over the University’s eyes.
But beyond these concerns, the cause of action has its own problems. Northwest Airlines v. Transportation Workers Union, 451 U.S. 77 (1981), rejected indemnity or contribution under Title VII or the Equal Pay Act because it would disrupt the “comprehensive character” of statutory remedies. Watkins distinguished that precedent because it had recognized that indemnification might be permissible where state law provided the rule of decision and allowed for indemnification. Thus, it was critical to the case that (1) the DC Human Rights Act barred the underlying conduct; (2) the plaintiff in the original suit had sued under the DCHRA; and, apparently, (3) the Human Rights Act itself permitted individual liability, presumably because that statute’s comprehensive scheme would not be disrupted. This combination of circumstances will not always obtain.
Finally, there’s the question of whether the Howard gave Watkins the opportunity to approve the settlement. Even where a judgment is concerned, an indemnitor must prove that it mounted a reasonable defense before an indemnitee s liable. When a settlement is concerned, the indemnitor is also supposed to tender the defense to the indemnitee or at least give her the opportunity to respond to the proposed settlement.
Thanks to Joanna Solloway for her help with this.