Workplace Prof Blog

Recently Published Scholarship

• Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012).
• Carl Engstrom, What Have I Opted Myself Into? Resolving the Uncertain Status of Opt-In Plaintiffs Prior to Conditional Certification in FLSA Litigation, 96 Minn. L. Rev. 1544 (2012).
• Adam Reinke, Reversing the Perversion: Interpreting ERISA to Protect Employees Who Report Violations of Federal Law to Their Managers, 61 Emory L.J. 1287 (2012).
• Elizabeth D. De Armond, To Cloak the Within: Protecting Employees from Personality Testing, 61 DePaul L. Rev. 1129 (2012).
• Lauren Kaplin, When Money Changes Hands: "Unwelcomeness" in Sex for Money, 33 Women's Rights Law Reporter 43 (2011).

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Wexler on Corporate Whitewashing

Lesley Wexler (Illinois) has just posted on SSRN her article (presented at last weekend's Colloquium) Extra-Legal White Washes.  Here's the abstract:

Do class action and other high profile lawsuits change corporate social behavior and create corporate social responsibility? While the answer is decidedly mixed, the litigation literature focuses on measures of legal compliance. Yet compliance is only one piece of the puzzle. In addition to choosing a compliance strategy, corporate actors can also deploy extra-legal behavior to respond to high profile litigation. This extra-legal behavior, by which I mean action taken in the shadow of the law, deserves additional scrutiny. Many have written about how litigation or regulation or the threat thereof can spark self regulation, but corporations manage a large toolbox of extra-legal tools of which self regulation is only one. This article identifies and investigates a different extra-legal response- the white wash.

To take up this challenge of theorizing corporations’ extra-legal toolbox, this paper begins by briefly explaining the interaction of reputation and corporate wrongdoing. I then provide a multi-element definition of an extra-legal white wash. As no uniform definition of “washing” yet exists, this article offers a useful focal point to unite the disparate studies across disciplines and substantive legal areas. In order to explore the underpinnings of a specific type of a white wash, this article highlights Wal-Mart’s response to the Dukes class action litigation as a potential example of an extra-legal white wash. This includes a critical look at some recently undertaken policies and practices in the areas of hiring, promotion, and women’s issues more generally.

Finally, this paper addresses the normative implications of extra-legal white washing. If one believes an underlying grievance is legitimate, then extra-legal white washing seems inherently problematic. When such extra-legal white washing ultimately succeeds in changing the conversation, the hypocrisy may constitute an additional, though non-legally cognizable, harm to the aggrieved. Notwithstanding these very real harms, this paper also identifies some conditions under which normatively desirable extra-legal white washing is possible and may even grow to address the underlying grievances. The paper concludes by noting the role law has to play in not only instigating extra-legal white washes, but in regulating them as well. It speaks to the larger potential of and need for access to robust substantive law to identify and remedy grievances.

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Support for the CA Domestic Workers Bill of Rights

Noah Zatz (UCLA) writes to tell us of a petition being circulated by academics in California in support of the Domestic Workers Bill of Rights there. Here is the note about the letter being circulated with links to it and to the letter of support from non-academics.

Dear Colleagues,

Thank you for agreeing to be one of the sixty-one original signatories to the Letter from Academics to Governor Brown in Support of The Domestic Workers Bill of Rights. Y/our names all appear following the text of the letter, which has now gone live online so that we may invite more colleagues to sign on as well. This is a much appreciated contribution to the campaign and if it is all you can do at this time, thank you! If you do a little more...

The California Domestic Workers Coalition will be delivering our letter to Governor Brown's office next Monday, so if you are willing to forward the link to other interested colleagues, please do so as soon as you are able and they will be added to the letter the Governor receives.

http://www.change.org/petitions/governor-jerry-brown-sign-the-domestic-workers-bill-of-rights-ab-889

And, finally, if you have time to go to the site yourself and click "sign this petition" online, it will help us track the running tally. This also may in turn make it even easier for you to forward the letter to other colleagues via email, Facebook and Twitter.

Should you know others hoping to sign a petition on this matter, who are not scholars with related interests, please refer them instead to the general petition in support of AB889 atwww.domesticworkers.org.

In Gratitude for your Solidarity,

Kathleen Coll, Stanford & Eileen Boris, UC Santa Barbara

MM

Work Stoppage Updates

We've had a few work stoppages developing, with a couple just this week.  Here's a status report.

• The NFL referees are still not working and it's not clear whether negotiations are proceeding positively.  But performance of the replacement refs are still a concern, especially after today.
• Not to de outdone by the NFL, the NHL has locked out hockey players.  Again.  Different year, same story:  a fight over money.  After getting concessions in the last CBA, the teams want more and the players are pushing back.  Who knows how long this will take.
• It was looking like Chicago teachers might return to work this week after a framework of a new agreement was reached.  But after a meeting with union delegates, the union is refusing to call of the strike until the membership can look at the agreement more and possibly continue negotations on some matters (note the interview in the story with a teacher from "Gompers Elementary School").  I've got to give credit to a teacher I met Saturday on the Chicago subway who was returning from a rally (I was leaving my hotel, the Hilton, which happened to be where the negotiations were being held.)  She said that at that point, the teachers only knew what they had seen in the news and that she had heard that it was likely that they would continue on strike the following week.  Looks like she was right.

-JH

Office of Special Counsel Finds Hatch Act Violation Against HHS Secretary

Very interesting story brought to my attention by friend of the blog, Dennis Nolan. Apparently, according to a story reported by Eugene Volokh at the Volokh Conspiracy blog, the Office of Special Counsel (OSC) concluded that during one speech Health and Human Services (HHS) Secretary Kathleen Sebelius violated proscriptions in the Hatch Act concerning political campaigning in the federal employment sector. 

One of the interesting questions is what the penalty should be for such a violation and does the OSC have the ability to enforce any type of penalty, such as a suspension from employment (as the statute requires in some instances for violations), against a high-ranking official in a coordinate branch of the government?  The OSC letter itself concludes:

In light of the President’s constitutional authority, Congress has determined that violations of the Hatch Act by such officers be referred to the President “for appropriate action.” See 5 U.S.C. § 1215(b). Accordingly, OSC hereby submits this Report of Prohibited Political Activity, together with a response from Secretary Sebelius, to the President.

It also appears from the OSC report that by Sebelius and her office themselves reclassifying the offending speech as a political one, they may have cured some, or all, of the Hatch Act violation.

I must admit that I really am not familiar enough with this area of federal sector civil service law to hazard a guess of what might happen further, if anything, and would certainly appreciate any insights that readers have in the comments section.

PS

Congratulations to Charlie Sullivan, Recipient of Second Annual Paul Steven Miller Award for Scholarly Contributions to Labor and Employment Law

Last night, during the reception at the Seventh Annual Colloquium on Labor and Employment Law in Chicago, Charlie Sullivan, my co-blogger, friend, and mentor, received the Paul Steven Miller Award for significant contributions to the development of labor and employment law scholarship.

As I said in my remarks last night during the award ceremony (and Mike Zimmer made eloquent remarks as well to his good friend):

The Paul Steven Miller Award is of course about the influence one has had on the development of scholarship in labor and employment law. I would be hard pressed to think of someone (perhaps with the exception of last year's recipient, Mike Zimmer) who has a more profound and lasting effect on the development of employment discrimination law doctrine in the United States (of course, he has also written important pieces in employment law, antitrust law, and contracts law, to name a few other areas).  Charlie started to write in this area as early as 1976, and has not let up in the sheer volume and quality of his scholarship in the last 35 and more years.  The man is stunningly prolific . . . .

All you need to do is read any employment discrimination law article from any other law professor in the country to know that they have felt Charlie's influence and they, like me, are indebted to him for all that he has done for the development of employment discrimination law.

I know, tonight, that Paul Miller, an eminent Title VII scholar and government official, is looking down on us this evening and smiling that impish grin of his.  He's saying: "You could not have picked a better and more deserving person for this honor!" 

Congratulations, Charlie.

PS

Wisconsin State Trial Court Invalidates Act 10 Anti-Collective Bargaining Law (updated)

Update (9/15/12): Here are some thoughts by myself and others in the Milwaukee Journal-Sentinel on how an appeal of the court's Act 10 decision might eventually unfold.

In a stunning turn of events, a state trial court in Dane County, Wisconsin (Madison) has declared null and void the anti-collective bargaining provisions, annual recertification provisions, and anti-dues check off provisions of Act 10 (the Wisconsin anti-collective bargaining law) under federal and state constitutional law.  The pension contribution provisions for Milwaukee were also struck down.  Here is the court's decision in Madison's Teacher Inc. v. Walker.

More specifically, the court found that Act 10 impermissbly burdened public sector union members' associational rights and free speech rights in collective bargaining and was in violation of equal protection under both federal and state constitutions. Additionally, the Court found that provisions requiring public employees to contribute to their pensions violated the Home Rule Amendment to the Wisconsin Constitution and the Impairment of Contracts Clause of both the Wisconsin and federal constitutions.

This decision will certainly be appealed and faces a frosty reception at the Wisconsin Supreme Court which has sided with Governor Walker on a partisan basis (4-3) in prior challenges to Act 10.

Things are about to get real interesting here in Wisconsin again.

PS

LEL Colloquium

Today marks the start of the two-day 7th Annual Colloquium on Labor and Employment Law.  The Colloquium is jointly hosted by Northwestern Law School and Loyola-Chicago Law School.  Here's the program description.

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Thanks to Phil Sparkes for sending a FindLaw link to a recent employment case currently in the popular press:

14 California lifeguards were fired from the city's aquatic center for a parody video they made of the popular 'Gangnam Style' music video.

Several lifeguards in El Monte, CA participated in the video but others were fired just for being in the background while it was shot. The pool manager was also fired even though he doesn't appear in the video.
...
But the guards claim they did it off the clock, while the pool was closed and no patrons were around.

The lifeguards were at-will, so they don't likely have a legal cause of action. Nonetheless, it's not difficult to imagine how a more enlightened employer might have handled this.

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Seventh Circuit Holds Reassignment Likely to Be Reasonable Accommodation under ADA

The Seventh Circuit issued an important decision on Friday in EEOC v. United Airlines, No. 11-1774. Through an unusual procedural device, the court overruled prior precedent and held that under the ADA, reassignment of an employee who becomes disabled can be a reasonable accommodation that the employer must provide. The prior case was EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in which the court had held that the ADA did not require that a vacant position be given to an employee with a disability where a better qualified employee also wanted it because the ADA was only a "nondiscrimination" statute, and not a "mandatory preference" statute. Two years later, the Supreme Court decided US Airways v. Barnett, 535 U.S. 391 (2002), holding that, in fact, sometimes the ADA did require what looked like preferential treatment of employees with disabilities to put them on an even playing field.

In EEOC v. UAL, the court remanded the matter to the district court to apply the two part test that Barnett requires:  1. Is mandatory reassignment, ordinarily, in the run of cases, a reasonable accommodation; and if so, 2. are there fact-specific considerations particular to this employer's employment system that would create an undue hardship and render mandatory reassignment unreasonable? There is an alternative test, too. If the court answers "no" to number 1, then the plaintiff has a chance to prove at step 2 that special factors make mandatory reassignment reasonable in this case.  The court also gave some guidance on when mandatory reassignment will not be reasonable, i.e. in a workplace with a bona fide seniority system, something the court called rather rare and which it noted was absent here. The court suggested that it was extremely likely that the district court would find that mandatory reassignment will be reasonable in the run of cases at United Airlines. 

With this decision, the 7th Circuit joined the 10th and D.C. Circuits (both of which had issued opinions en banc before Barnett) in holding that mandatory reassignment was required unless it would create an undue hardship for an employer. The 8th Circuit, which had relied on Humiston-Keeling, may want to rethink its position.

h/t Mark Weber (DePaul)

MM

Recently Published Scholarship

• Amanda McHenry, The NLRB Wields Its Rulemaking Authority: The New Face of Representation Elections, 62 Case Western Res. L. Rev. 589 (2012).

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Chicago Teachers Strike

It's just been announced that negotiations between Chicago teachers and the school board have broken down and the teachers will go on strike on Monday.  I'm not up on the details of the negotiations--which seems to have turned sour when the mayor rescinded a previously negotiated raise--but I predict that the union is going to lose the PR battle on this one.  Some of the announced raise demands (now 19% in first year the schools' latest offer is 4% increases over the next four years), for instance, is not going to play well in this economy no matter what the details are.  Stay tuned.

-JH

Congratulations to Workplace Prof Blog ...

... on receiving this morning its two millionth visitor. Thanks to all who contribute to Workplace Prof Blog by reading, sharing ideas for new posts, guest posting (if you haven't but are interested, let one of our editors know), and for the heartwarming thanks-for-the-blog emails the editors receive every once in a while that help keep our motivational juices flowing.

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Judge Defers Suit on State Secret Ballot Laws

As we've discussed in the past, a handful of states passed laws that purported to require a secret-ballot election to unionize a workforce.  I say "purported" because, in the face of preemption challenges, the Attorney Generals of the states said that the measures only require secret ballots if there is an election ordered.  I noted before that this basically says that the measures have absolutely no practical impact.

Acting on a preemption suit filed by the NLRB against Arizona, a district judge granted the state summary judgment. Before you get excited one way or another--or trust media reports that Arizone "won" the case, the judge's reasoning was basically that the states' interpretation of the law would, if actually followed, avoid preemption because it mirrors the NLRA.  Thus, the judge stated that a preemption challenge is unripe but that the NLRB could file an as-applied challenge later if one of the states tried to apply the law differently--i.e., tried to prevent voluntary recognition.  The operative portion of the decision states that:

Although Article 2 § 37 guarantees the "right to vote by secret ballot for employee representation," it does not, on its face, address how, when, or by whom these elections are conducted. Without an actual state court proceeding addressing Article 2 § 37, we are left to speculate how state litigation concerning the right to a secret ballot may arise, and precisely what conduct might be challenged. However, given that the NLRA places the responsibility on the NLRB to conduct secret ballot elections, the outcome of which is only judicially reviewable in the context of an unfair labor practice proceeding, we conclude that state court proceedings invoking Article 2 § 37's guarantee of secret ballot elections will at least arguably overlap with the NLRB's jurisdiction under § 8 of the NLRA to address unfair labor practices.

Accordingly, the decision does nothing to undermine the NLRB's argument that any state attempt to cut-off an NLRB-approved means of unionization would be preempted. Indeed, the judge emphasized that both voluntary recognition and elections are valid means to select a union.

-JH

Replacement Referees

After all the labor craziness in the NFL last season, you'd think they would deserve a year off.  But, as NFL are well aware, negotiations between the league and the referees are still at a standstill.  The result has been that the NFL locked out the referees this summer and has since been using replacement referees.  During the preseason, this has not worked out well as there were many instances of replacement refs blowing calls.  During Wednesday night's season opener, however, the refs seemed to do a better job.  Whether that continues this weekend, when there are numerous games remains to be seen and the answer could well influence the league's ability to cotinue using the replacement refs.  The sides still seem far apart, but pressure from players and fans could move the NFL some.  Or not; the league stood pretty firm in its negotations with the players last year, so it may be working hard to set down some markers with its employees.  Stay tuned.

-JH

August Employment Data

The Department of Labor released its employment data for August today and it was more of the same--not awful, but not good either.  There were 96,000 jobs added the last month; 103,000 jobs in the private sector and 7,000 less government jobs. The two previous months were revised downward by about 20,000 jobs a month.  Given the number of people dropping out of the labor market, the unemployment rate dropped from 8.3% to 8.1%.

This may spur the Federal Reserve to take more aggressive actions, but we'll see . . . . 

-JH

Cleaning off my to-post list round-up

There's so much that I've been meaning to post lately, but I've gotten so behind there's no chance. So just to throw it all out there in no particular order:

• The California Senate passed AB 889 (Domestic Workers bill of rights) late last week. It goes to Governor Brown for signature. Then, of course, the workers have to know they have rights as New York is discovering.
• People stay in their jobs primarily because they like what they do and they feel connected to their coworkers and employer, according to the National Retention Survey.
• More on the EEOC's duty to conciliate from Molly DiBianca at the Delaware Employment Law Blog.
• Honest Tea ran an experiment on people's honesty across the country and have made the data available here. It's broken down in some very interesting ways: by geography, hair color, and more. Could/should employers use this information to make decisions about potential employees in hiring?
• Is business school culture to blame for sexual harassment in the workplace? Here and here.
• Women are more likely than men to see nuance in making decisions. Carol Gilligan made that point in moral judgments, but it's now backed up at an earlier stage of cognition: categorizing.
• It takes three kids to kill your career if you're a woman in Australia.
• Sometimes, it seems, women are paid less because they're women.
• Jerks make more money.
• The Seventh Circuit suggests that it may not show discrimination if a supervisor says that he  (the supervisor ) got his job because he was white, calls a Hispanic employee a “gold-digger” when he  asked for a  raise, says “I’m white and I’m right”, yells at a Hispanic employee having a heart attack to “Get the hell out  of my  office. Go  die somewhere else,” say on numerous occasions that he does not like  Spanish people,  and refer frequently  to Hispanics as  “dummies” and “stupid.” The "real trouble" comes when that supervisor stops hiring because only Hispanics are applying. Yay?
• Misrepresenting yourself on an insurance application doesn't allow an agency to find that you are what you said there when you said something different to the agency and where the agency has lots of evidence that the representation to it was accurate. Plus, employment immigration law is hard.
• Lawyers who contract with the federal government to provide general legal advice or other legal services are governed by federal executive orders requiring compliance with federal contractor reporting requirements -- and the OFCCP can come in and make you: Download OFCCP v. O'Melveny & Myers October 31, 2011 (h/t Patricia Schaeffer, EEOIMPACT LLC).

And if I don't start to get some balance between work and life (or cut down on work), I'm going to end up like this poor woman, who died at her desk, but no one noticed. Whew. To-do list cleared off for the moment. I feel better.

MM

Recently Published Scholarship: ABA JLEL

ABA Journal of Labor & Employment Law

Volume 27, No. 3, Spring 2012

• Seth Thompson, The Editor's Page, P. v.
• Eric Schnapper, Review of Labor and Employment Law Decisions from the United States Supreme Court's 2010-2011 Term, p. 329.
• Michael W. Garrison Jr. and Ryan W. Rutledge, The Standard for Obtaining Section 10(j) Interim Injunctive Relief Under the National Labor Relations Act: The Interplay Between the NLRA and the First Amendment, p. 365.
• Jonathan M. Turner and Jesse M. Koppin, Discovery in NLRA Section 10(j) Proceedings, p. 385.
• Debrai G. Haile and Sara Leitenberger, Improper and Abusive Written Discovery Requests in Single- and Multiple-Plaintiff Employment Cases, p. 397.
• Christopher Lage, Conducting an Ethically Sound Internal EEO Investigation, p. 415.
• Gwen Thayer Handelman, Tears and Fears: The Illusory Ethical Issues Raised by Strengthening Enforcement of the LMRDA Persuader Reporting Rules, p. 433.
• Celeste Drake, U. S. Trade and Economic Policy: American Workers Need More Than Strong Labor Chapters, p. 455.
• Dr. Mary Dunn Baker, Class Certification Statistical Analyses Post-Dukes, p. 471.
• Jacob Schutz, Association Discrimination Under the Americans with Disabilities Act: The Case of Dependent Healthcare Costs, p. 485.

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Helfand on Hosanna-Tabor & More

Michael Helfand (Pepperdine) has just posted on SSRN his article (forthcoming Minn. L. Rev.) Religion's Footnote Four: Church Autonomy as Arbitration.  I've just skimmed the article and find it fascinating -- I can't wait to read it more carefully.  Here's the abstract:

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system.

Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.

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EEOC Seeks Input on Draft Strategic Plan

The EEOC has posted its Draft Strategic Plan for the Years 2012-16 on its website and asked for feedback. From the press release:

The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Enforcement Plan (SEP).  Comments must be submitted by 5:00 pm ET on September 18, 2012 at [email protected] or received by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507.  The Commission plans to vote on the draft plan at the end of this fiscal year.

. . .

For general inquiries about the plan, please email [email protected] or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or [email protected].   If you are seeking EEOC information, please call (202) 663-4900 or e-mail[email protected].  Further information about the EEOC is available on its web site at www.eeoc.gov.

And I got word of this from Commissioner Feldblum's twitter feed. If you don't follow her, you should: @chaifeldblum. 

MM