Workplace Prof Blog

NLRB Flips Again on E-Mail, Concluding that Employees Typically Lack the Right to Use Employer E-Mail for NLRA Communications

Today, the NLRB issued its decision in Rio All-Suites Hotel, which concluded that employees typically lack the right to use employer provided e-mail under the NLRA. The Board explictly adopted the rationale of the earlier Register-Guard decision which held the same and overruled the subsequent Purple Communication, which had reversed Register-Guard. Given that the the Board is literally rehashing prior arguments (this issue is now on the official "flip-flop" list), I'm going to follow its lead and rehash my prior commentary on the issue. I'll claim exhaustion as a defense--I've written extensively about this topic (see, e.g., here, here, and here), including an amicus brief in Rio. And I'll no doubt do the same when the Board flips again.

One note before I get to the self-plagarism: A small victory in Rio is that the Board didn't pursue the First Amendment claim the Member Johnson advocated in his Purple Communications dissent. I thought it was a weak claim, but definitely one that the Board could've pursued.

When Register-Guard was first issued, I blogged the following about the decision, which--based on a skim of Rio--remains applicable today. There is one addition in Rio, which is "an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another." I'm honestly not sure this is new, because in Register Guard the Board seemed to suggest the same thing (while disclaiming it in a footnote)--which essentially, and incorrectly as McFerran's dissent notes, applies the Lechemere non-employee test to an employee activity situation. On to the rehash:

. . . The majority, in finding for the employer . . . took an overly restrictive view on the importance of emails, which was no shock given the oral argument.  However, it also decided to reverse its precedent with regard to discriminatory conduct under Section 8(a)(1) and adopt a nonsensical position that only the Seventh Circuit has used.  First, with regard to the email policy, the majority concluded that:

An employer has a “basic property right” to “regulate and restrict employee use of company property.” Union Carbide Corp. v. NLRB. The Respondent’s [employer's] communications system, including its e-mail system, is the Respondent’s property and was purchased by the Respondent for use in operating its business. The General Counsel concedes that the Respondent has a legitimate business interest in maintaining the efficient operation of its e-mail system, and that employers who have invested in an e-mail system have valid concerns about such issues as preserving server space, protecting against computer viruses and dissemination of confidential information, and avoiding company liability for employees’ inappropriate e-mails.

Whether employees have a specific right under the Act to use an employer’s e-mail system for Section 7 activity is an issue of first impression. In numerous cases, however, where the Board has addressed whether employees have the right to use other types of employer-owned property—such as bulletin boards, telephones, and televisions—for Section 7 communications, the Board has consistently held that there is “no statutory right . . . to use an employer’s equipment or media,” as long as the restrictions are nondiscriminatory. . .  .

In contrast to the employer’s policy at issue in Republic Aviation, the Respondent’s [policy] does not regulate traditional, face-to-face solicitation. Indeed, employees at the Respondent’s workplace have the full panoply of rights to engage in oral solicitation on nonworking time and also to distribute literature on nonworking time in nonwork areas, pursuant to Republic Aviation and Stoddard-Quirk. What the employees seek here is use of the Respondent’s communications equipment to engage in additional forms of communication beyond those that Republic Aviation found must be permitted. Yet, “Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.” Guardian Industries Corp. . . . Republic Aviationrequires the employer to yield its property interests to the extent necessary to ensure that employees will not be “entirely deprived,” of their ability to engage in Section 7 communications in the workplace on their own time. It does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.

The majority's analysis here is weak.  The personal property cases that the majority cites to over and over in its decision are very thin reeds, as none of them engaged in any real analysis of the issue (it's a classic string of "it's well-established that . . ." statements which, if you keep going back, are based on little more than an un-cited throwaway line by an ALJ).  Moreover, the idea that an employer can control use of its personal property any way it chooses is counter to property law.  As chattel, personal property has less protection than real property (which the Supreme Court has held that employer's don't have full control of vis a vis labor rights). The NLRB's distinguishing of Republic Aviation also sounds disturbingly like the Supreme Court's nonemployee solicitation analysis in Lechmere--which even the Court took pains to differentiate from the employee solicitation context of Republican Aviation.  Finally, as I've written about at great length, I could not disagree more with the majority's rejection of the dissent's argument that email has so dramatically effected the workplace that it's worth a special rule.  The dissent would adopt a rule that would presume that restrictions on email use are unlawful absent special circumstances.  I'm obviously supportive, given that I argued for that exact rule.

It is also important to note that Rio leaves Register-Guard's narrow view of the discrimination exception to this rule. I never understood why the Obama Board in Purple Communications left that undisturbed, but that piece of Register-Guard has now remained the same for a while I've described that exception as follows:  

The circuit courts have been all over the place in trying to define what "discrimination" means in the solicitation context.  To quote my own summary of the various definitions of discrimination, which include:  "giving access to all groups but unions; allowing only work-related or isolated charitable solicitations; allowing all charitable solicitations; and favoring one union over another or allowing distributions by employers, but not unions."  The Board adopted the last of these, which is the Seventh Circuit's approach (and which the Board had previously refused to follow under its non-acquiescence policy):

In Guardian Industries, the court started from the proposition that employers may control the activities of their employees in the workplace, “both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer’s rules as a condition of employment).”  Although an employer, in enforcing its rules, may not discriminate against Section 7 activity, the court noted that the concept of discrimination involves the unequal treatment of equals. The court emphasized that the employer had never allowed employees to post notices of organizational meetings. Rather, the nonwork-related postings permitted by the employer consisted almost entirely of “swap and shop” notices advertising personal items for sale. The court stated: “We must therefore ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.” The court ultimately concluded that “[a] rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions.” 

Thus, in order to be unlawful, discrimination must be along Section 7 lines. In other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other Section 7-protected status. For example, an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees

In the end, Rio is disappointing, but not surprising. And almost certainly not the last word once a new adminsitration comes in. Also, I am very curious to see what an appellate court does with the rule. As I explained, I think its directly in conflict both with Supreme Court precedent and basic property law. So a court could reject the rule. Note that the D.C. Circuit didn't approve of Register Guard, reversing it on another issue. So we shall see . . . .

Jeff Hirsch

NMB Hosts Open Meeting (or was it a Hearing?) on Proposed New Voting Rule

Jeffrey Hirsch reported back in early November on the National Mediation Board's (NMB) notice of proposed rulemaking (NPRM) about changing the way union votes are counted in union representation elections under the Railway Labor Act (RLA).  I attended the NMB's open meeting today, held at the National Labor Relations Board (the NMB doesn't have enough space to accommodate large crowds).  Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present.  The NMB officials didn't engage in conversation with the speakers, answer any questions, or make any comments. 

There were no real surprises from the speakers.  Labor advocates want the NMB to change the way it counts votes in union organizing campaigns and, in support of the change, referred to, among other things, the civil rights movement, Democracy, alleged "suppression" efforts by carriers, and changes in the industry, American culture, and technology.  Management advocates called for the NMB to rescind the NPRM and commented that the proposed new rule appears to be a politically motivated effort to make it easier for unions to win representation elections.  Management advocates also urged the Board to implement a decertification process if it moves ahead with the new voting rule. 

Now might be a good time to dust off Sections 2, Fourth and 2, Ninth of the RLA, along with a copy of the Administrative Procedure Act.

A list of the speakers follows.

• Robert Siegel, Air Transport Association of America
• Edward Wytkind, Transportation Trades Department, AFL-CIO
• Joanna Moorhead, National Railway Labor Conference
• John Prater, Air Line Pilots Association International
• Robert DeLucia, Airline Industrial Relations Conference
• Robert Roach, International Association of Machinists and Aerospace Workers
• Jack Gallagher, Delta Air Lines
• Carmen Parcelli, Transportation Trades Department, AFL-CIO
• Randel Johnson, US Chamber of Commerce
• Marianne Bicksler, Association of Flight Attendants - CWA
• Sandy Gordon, Delta Air Lines
• Joel Parker, Transportation Communication International Union/IAM
• Candace Bruton, Self
• John Conley, Transport Workers Union
• Edward Bahmer, Self
• David Bourne, International Brotherhood of Teamsters
• Claude Sullivan, Ford & Harrison LLP
• Janette Rook, Association of Flight Attendants
• Douglas Hall, Regional Airline Association
• Kate Brofenbrenner, Cornell University
• Keith Borman, American Short Line and Regional Railroad Association
• John Murphy, International Brotherhood of Teamsters
• Roger Briton, Airline Services Council of Nat’l Air Transportation Assc.
• David Boehm, Self
• Donald Maliniak, Littler Mendelson, P.C.
• Richard Shaughnessy, Communication Workers of America, Local 6001
• David Livingston, Self
• Samuel Berry, Self
• Beth Graham, Self
• Ressel Rego, International Brotherhood of Teamsters
• Raymond LeJeunesse, National Right to Work Legal Defense Foundation, Inc.
• Reginald Robinson, International Brotherhood of Teamsters
• James Dolezal, International Brotherhood of Teamsters

Kevin Kraham

Sen. Bayh on EFCA

Interesting take on the Employee Free Choice Act (EFCA) from one of the more moderate Democrats in the Senate, Senator Evan Bayh (D-IN) (from an interview with Howey Politics Indiana):

I’m for reform of the labor law system. I’ve said that repeatedly. I think there are problems with the election process getting strung out months and months and months. Some of the penalties for either side committing abusive conduct are either meaningless because they’re too small or they get strung out for years and it doesn’t have an impact. And when you do have successful elections, sometimes the negotiations go on for years and the results of the elections are frustrated in that. At the same time, I think preserving the secret ballot is a good thing. The hardest issues are what do you do once there’s been a successful election and there’s just an impasse at negotiations? I don’t think we’re going to have binding arbitration. But is the mechanism short of that? Is it some sort of last best offer? Is there some sort of finding of bad faith trigger? Some sort of action for mediation? I don’t know. I’m not on the committee that handles that, either, so I am an observer. I’m hoping we can reach a sensible compromise. Many in the business community this summer felt this is going to go off on an irrational way. I’ve heard their concerns. But many in the business community say, “Look, if you can preserve the secret ballot, have reasonably prompt elections, meaningful penalties for those few bad actors out there, then there is some incentive for people to bargain in good faith.” Many in the business community would support that kind of thing. Many on the labor side would say that’s not everything they want, but it’s a step forward. So I’m hopeful we’ll end up in that place. Only time will tell. I told the labor guys this and this is above my pay grade, but I don’t think we’re even going to vote on it this year.

Disappointing that Bayh does not think there will be a vote this year on some version of EFCA, but at least he is for reform of the labor law system. I guess the time it takes to pass some form of health care reform will give us the best indication of when we might see the final push for some version of EFCA.

PS

The Gross Fair Age Discrimination Prevention Act?

It might just be that the awful ADEA mixed-motive case of Gross v. FBL (following the Price Waterhouse dissent and requiring "but for" causation in these cases) may suffer the same fate as the equally awful Ledbetter pay discrimination decision: Congressional reversal.

From Philip Miles of Lawffice Space:

The Senate Committee on the Judiciary has scheduled a hearing on, and I quote, "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?" The witness list includes:

    * Jamie Leigh Jones of the Jamie Leigh Foundation, an organization dedicated to victims of crime working overseas for government contractors and subs;
    * Prof. Michael Foreman from my undergrad alma mater, Penn State, where he directs the Civil Rights Appellate Clinic at the law school; and
    * Jack Gross, plaintiff in Gross v. FBL Financial.

I agree with Philip that some Senators, like Leahy, are targeting the Gross decision for annihilation, but I also agree with him that, "it's just a hearing and to my knowledge no precise action has been proposed."

PS

Baucus Healthcare Bill Falls Short on Public Option, Employer Mandates and the Effective Date for the Legislation

In what will certainly be the news of the day, the Senate Finance Committee Chairman, Max Baucus (D-MT) released his version of the national health care reform bill.

Although there are many interesting provisions in the Baucus Bill, including a requirement that individuals have health insurance coverage, the establishment of a health care exchange, proposed reforms for the private insurance system including not allowing exclusions for preexisting coverage, and expansion of the Medicaid program for the poor, I want to focus on three parts that trouble me that directly deal with current employee benefits law. 

First, the plan does not adopt a public option for health care.  Instead, it establishes state-based cooperatives to compete with private health plans.  I think this a huge mistake and such coops will be a failure from the start.  For the best explanation as to why, here is former Labor Secretary Robert Reich explaining why the public option is so superior to co-ops. 

Perhaps even more disappointing from my perspective is that the Baucus Bill does not require employers to provide coverage to workers, like some of the House counterparts bills.  Instead, employers with more than 50 workers who do not offer coverage will have to reimburse the government for each full-time employee receiving a health care affordability tax credit in the exchange starting in 2013.

Two thoughts on this one. One, there is no reason to limit this to employers with 50 employers with more. That is the cutoff currently for the Family and Medical Leave Act and it has left a huge number of workers without leave protection.  Similarly, this arbitrary cut-off will continue to leave millions of workers at smaller employers without health coverage. As long as we are going to stick with our unique employer-provided coverage, we should make sure all employees can get coverage through their employers.  The only other options is for these people to qualify through some other government program like Medicare, Medicaid, or Social Security.  Yet, those programs do not provide the necessary and timely health treatment that many employees need.

Second, why does this not start until 2013?  Assuming the bill passes in 2010, why should a vast number of workers suffer at these larger companies without healthcare?  Or put at little more forcefully, how many employees will die in those three years from that delay in providing coverage.

Needless to say, I sure hope that these two provisions are not in the health care reform bill that President Obama eventually signs into law.

The text of the bill, America's Healthy Future Act of 2009, is available here.

PS

Mainstream Media Discovers Dysfunction at the NLRB

Welcome to the party, MSNBC:

Another Labor Day, another year of dysfunction in the agency that's supposed to protect workers from unfair labor practices and referee clashes between unions and management.

The enduring stalemate at the National Labor Relations Board, the longest in its history, comes as evidence that elections don't always settle political tugs of war. Ten months after the election of a president and Congress from the same party, no end is in sight to the deadlock.

Decisions are stalled on dozens of disputes that could set labor-management policies for decades to come. Can employers prohibit employers from using the company's e-mail system to send union-related messages? Where may union members distribute literature at work sites? What about organizing a union by simply signing cards instead of having a secret-ballot election? . . . .

With just two members, the board has ruled on more than 480 cases in which the chairwoman, Democrat Wilma Liebman, and Republican board member Peter Schaumber can agree. They have put off dealing with about 50 more contentious cases that are being closely watched by both business and labor . . . .

Even the "pure vanilla" cases are not without dispute. Earlier this year, the U.S. Court of Appeals for the D.C. Circuit threw into doubt the validity of every decision the board's two members have issued since January 2008. The court said federal law does not permit the board to act without a quorum of three members, a ruling that only adds to the uncertainty.

At least two other federal appeals courts have reached the opposite conclusion, though, and the Supreme Court is expected to weigh in to resolve the split. Meanwhile, the agency is continuing to issue decisions.

It's a good thing that the only thing at stake is the livelihood of employees throughout the country.

PS

Low Income Employees Losing Income Left and Right

Steve Greenhouse over at the New York Times gives us the scoop aboutan interesting new workplace study by Ruth Milkman, among others:

Low-wage workers are routinely denied proper overtime pay and are often paid less than the minimum wage, according to a new study based on a survey of workers in New York, Los Angeles and Chicago.

The study, the most comprehensive examination of wage-law violations in a decade, also found that 68 percent of the workers interviewed had experienced at least one pay-related violation in the previous work week.

“We were all surprised by the high prevalence rate,” said Ruth Milkman, one of the study’s authors and a sociology professor at the University of California, Los Angeles, and the City University of New York. The study, to be released on Wednesday, was financed by the Ford, Joyce, Haynes and Russell Sage Foundations.

In surveying 4,387 workers in various low-wage industries, including apparel manufacturing, child care and discount retailing, the researchers found that the typical worker had lost $51 the previous week through wage violations, out of average weekly earnings of $339. That translates into a 15 percent loss in pay.

Part of the study's findings were that employers of low-income workers were successful in intimidating them not to bring workplace claims, including worker compensation claims.

I actually think this study resonates with the current fight between unions and companies over the Employee Free Choice Act and the need for voluntary recognition of unions versus the need to keep secret ballot elections.

Really what this argument is all about is whether you are more concerned about union intimidation or management intimidation in the workplace.  I think, at least in the low income world, this study is further proof that employer intimidation is much more prevalent and impactful.  As someone recently put it to me: there is just something about an employer having the ultimate power of hiring and firing workers.

PS

PBS Series: Once Upon a Job . . .

From PBS’ Nightly Business Report (NBR) Media Alert: Starting tonight on NBR: Once Upon a Job…

3-part series on unemployment.

"Once Upon A Job..."
Tuesday, September 1, 2009
Wednesday, September 2, 2009
Thursday, September 3, 2009

This is perhaps the toughest job market since the Great Depression. More than six million Americans are drawing unemployment benefits and countless others have seen their benefits run out. For the next three nights NBR Midwest Bureau Chief Diane Eastabrook introduces us to the faces behind those figures. 

Pt. 1 – We meet an unemployed Sales Executive from Gurnee, IL
Pt. 2 – We meet an unemployed Technology Manager from Skokie, IL
Pt. 3 – We meet an unemployed couple from Arlington Heights, IL
 
Plus, there will be a Labor Day Special Edition on NBR: “Working It Out,” Monday, September 7th.

PS

Female Supervisors Face Significant Sexual Harassment

Probably not a big surprise to many readers out there that female supervisors are still harassed in large numbers, but the fact that this study show that they are harassed more than non-supervisor female employees is just a little surprising to me (via MSNBC):

Female managers are 137 percent more likely to experience sexual harassment than their rank-and-file counterparts, according to a recently released study.

Even Heather McLaughlin, a sociologist at the University of Minnesota and the primary investigator on the study, was surprised by the findings.

“It’s sort of a paradox,” she says. “You would expect that having that status and power over other employees would protect you from that behavior.”

Turns out it doesn’t, and McLaughlin’s conclusion is that “because of gender norms, people are still not accepting women in power positions.”

The report, “A Longitudinal Analysis of Gender, Power and Sexual Harassment in Young Adulthood,” looked at data that tracked nearly 600 individuals from adolescents into their 30s.  

Perhaps men are further aroused by women in power or more likely, enjoy the thrill of bringing a women in power down to their own base level. In any event, sexual harassment training, which traditionally separates out rank-and-file workers from supervisors, probably should be modified to take this new phenomenon into account.

PS

The Public Health Option and Lessons from the San Francisco Experiment

As I prepare to provide brief commentary on various legislative provisions for a CCH publication that will explain health care reform legislation once it is finalized, I could not help but take notice of this important op-ed. It is by a trio of labor and health economists that ran in the New York Times this weekend on the much discussed public option and its relations to employers being mandated through a pay or play system to provide health insurance for their employees.

Here's a taste:

TWO burning questions are at the center of America’s health care debate. First, should employers be required to pay for their employees’ health insurance? And second, should there be a “public option” that competes with private insurance?

Answers might be found in San Francisco, where ambitious health care legislation went into effect early last year. San Francisco and Massachusetts now offer the only near-universal health care programs in the United States . . . .

[W]e have seen how concern over employer costs can be a sticking point in the health care debate, even in the absence of persuasive evidence that increased costs would seriously harm businesses. San Francisco’s example should put some of those fears to rest. Many businesses there had to raise their health spending substantially to meet the new requirements, but so far the plan has not hurt jobs . . . .

So how have employers adjusted to the higher costs, if not by cutting jobs? More than 25 percent of restaurants, for example, have instituted a “surcharge” — about 4 percent of the bill for most establishments — to pay for the additional costs. Local service businesses can add this surcharge (or raise prices) without risking their competitive position, since their competitors will be required to take similar measures. Furthermore, some of the costs may be passed on to employees in the form of smaller pay raises, which could help ward off the possibility of job losses. Over the longer term, if more widespread coverage allows people to choose jobs based on their skills and not out of fear of losing health insurance from one specific employer, increased productivity will help pay for some of the costs of the mandate.

In case you think this is all a bunch of liberal, Democratic mishigosh, one of the authors of this op-ed happens to be non-other than William Dow, a senior economist who worked for President George W. Bush’s Council of Economic Advisers.

In other words, increasing evidence is out there that health care reform with a public option and an employer pay or play mandate might be just what our system needs to rein in health care costs while at the same time providing health insurance to a much larger segment of American society.

PS

More About the Recent Minimum Wage Increase

Paula Brantner of Workplace Fairness and the excellent Today's Workplace Blog has some interesting new details concerning the recent rise of the federal minimum wage to $7.25 on July 24, 2009:

About 10 million workers - 10.7% of all workers -- will receive a $2000 annual increase as a result of this increase. Many believe that the minimum wage increase is an important step towards helping families through these difficult economic times. "Working families who make the minimum wage have been barely scraping by," said Paula Brantner, executive director of Workplace Fairness. "While workers who make the minimum wage will still struggle financially -- even with this increase -- this will put more money in the pockets of working people and help stimulate our still-sluggish economy."

Employers in the following 30 states will now have to pay their workers $7.25 an hour as a result of the change in the law:

Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. 

Brantner points out that twenty states already have state minimum wages higher than, or the same as, the federal level. More insight on the federal minimum wage increase can be found at Federal Minimum Wage Increase, by Hannah Goitein, at Today's Workplace, the Workplace Fairness blog.

PS

Sharpton Comes Out Against EFCA

Somewhat surprising (though not surprising that The National Review picked it up):

This is a transcript [from] the Al Sharpton Radio program earlier [yesterday].

Al Sharpton: Yeah, well, what I don’t understand about it which is why I’m in the campaign is why wouldn’t those of us who support workers being protected, why would we not want their privacy protected.  I mean why would we want them opened up to this kind of possible coercion?

Sylvester [Smith]: Well, and that’s the 50 million dollar question, Rev. Sharpton, it’s a question we’ve been trying to answer but we think that the heart of this issue is not about protecting workers, the heart of this issue is about the decline of union membership that’s been going on in this country for the past thirty years.  The unions at this point are in a death spiral and much of it’s tied to the exportation of production jobs from this country to other countries and the unions…

Al Sharpton: Yeah, the outsourcing, well I’m all for, and as well for those who don’t believe in the right to organizing, clearly I’m for any legislation to give any state the right to organize, but I’m talking about specifically where workers are not protected from coercion, in terms of these card-checks that you talk about, and as arbitration because explain, Charlie King, to me the whole question that you raised, if you have a federal arbitrator who says that this is the deal, even when the union only established out of card-check, is the deal for two years, and there’s nothing you can do about it, I mean, a lot of the business that we afford for the African American community to get contracts and sub contracts and all.  They could face some very serious problems here.

Sharpton appears to worry that the EFCA could circumscribe employee's privacy rights and also first contracts being hoisted upon minority-owned businesses by outside arbitrators.

There is a lot to say in response and I hope that Rev. Sharpton will listen to the other side's explanation about where the real coercion and lack of privacy takes place - in the workplace from the employer. I also hope someone explains to him how interest arbitration works and that arbitrators do not just force employers to agree to onerous collective bargaining agreements. Interest arbitration takes materials and evidence from both sides and then comes up with a compromise that both sides can live with.

My fear is that if Rev. Sharpton is confused about the benefits of EFCA, then unions and their allies have some hard work ahead explaining to legislators - especially Democratic ones - how this law will work and what abuses it will prevent.

Hat Tip:  Justin Keith

 

PS

The Broken Government Project

Andrew Green, from the Center for Public Integrity, tells us about a project that the Center just launched.

"Broken Government" catalogues many of the major executive branch failures over the past eight years - including failures to protect Worker Safety.

The complete list is available at their site.   You can find categories that labor-types might be interested in, for instance, by clicking on topics under Consumers & Workers.

Sounds like one could spend all day on this site reading about what is broken in American government these days (sigh).

PS

Labor and Employment Professor Members of Obama Agency Review Teams

As the country waits in suspense to see who will fill the prominent positions in the coming Obama administration, I have to admit that I am much more interested in learning who is playing a role currently in reviewing the labor and employment federal agencies.

We now have some answers with the posting of the Agency Review Teams for the Obama-Biden Transition.

As far as labor and employment law professor members, the list contains some eminent names including: Seth Harris (NYLS) (Working Group Member and Labor Team Lead); Tom Kochan (MIT) (Labor Team Lead); Cindy Estlund (NYU) (Labor Team Lead (NLRB)); Phyllis Borzi (GW Health) (Labor Department Team Member); Paul Miller (Washington) (Labor Department Team Member); and Emily Spieler (Northeastern) (Labor Department Team Member).  Additionally, my former labor law and employment law professor at Georgetown, Walter Kamiat, is heading of the agency review of the PBGC.

Further information about the Team Leaders reveals that Tom Kochan will be leading review of the FMCS and Cindy Estlund will be doing the same with the National Labor Relations Board (NLRB).

My hope is that the number of labor and employment law academics on the transition team will translate to some appointments for our academic community in the new Obama Administration. My list of such possibilities (if anyone was on the transition team was reading) was published last week.

Hat Tip: Paul Mollica

PS

Some Thoughts/Speculation on Labor and Employment Appointments in the Obama Administration

So what do you get when you put together the election of a Democratic President and the fact that much of the labor and employment law professoriate is, shall we say, on the progressive side of things? 

Answer: many said academics wandering what role, if any, they will be playing in the new Obama administration.  From the lowest of assistants to the assistant Deputy of something to the head of some important agency, the number of positions open in places like the Department of Labor, the NLRB, the EEOC, etc. is staggering.

What follows then is some combination of sheer speculation and educated guesses.  Although I served on two of President-elect Obama's policy committees (labor and government reform), the latter as the Midwest Chair, I am completely outside of this process and do not serve on any of the transition teams in these areas.

In any event, here are my predictions/guesses (with a little help from my friends), and of course only a part of these appointments in any case will be from the academic world.  Feel free to put forward your suggestions/predictions in the comments that follow.  Who knows maybe somebody with some influence will be reading this post!

Secretary of Labor:  Robert Reich (Dick Gephardt and David Bonior have also been mentioned)

Deputy Secretary of Labor: Ed Montgomery (also national chair of Obama's Labor Policy Committee)

Solicitor of Labor: Seth Harris, Kathy Stone

Deputy Solicitor of Labor: Sam Bagenstos, Eric Schnapper, Marion Crain

NLRB Members:  Dennis Walsh, Anne Marie Lofaso, Jeff Hirsch, Sam Estreicher, Joan Flynn, Sharon Block, Jim Brudney

NLRB General Counsel:  Michael Gottesman, Cindy Estlund, Craig Becker

Office of Labor-Management Standards: Ken Dau-Schmidt, Laura Cooper

EEOC Commissioners: Wendy Williams, Chai Feldblum, Charlie Sullivan, Mike Zimmer, Roberto Corrada

Women's Bureau: Nancy Levit, Susan Carle, Angela-Onwuachi-Willig

OSHA: Jordan Barab

Office of Disability Employment Policy: Paul Miller, Michael Waterstone, Michael Stein, Mark Weber

FMCS:  Rick Bales, Marty Malin

Employment Standards Administration:  David Weil, Tom Kochan

Wage and Hour Division:  Catherine Fiske, Matt Bodie, Steve Befort, Peggie Smith

MSPB: Marty Malin, Joe Slater, Helen Norton

Office of Special Counsel:  Richard Moberly

EBSA: Colleen Medill, Ed Zelinsky, Jon Forman

PBGC: Albert Feuer, Jim Wooten

OFCCP:  Melissa Hart

Bureau of International Labor Affairs: Lance Compa, Matt Finkin, Hillary Josephs

One last thought: it will be interesting to see if Obama keeps the Center for Faith-Based and Community Initiatives.

Have at it everyone.

PS

Milwaukee Third Municipality to Pass Paid Sick Leave Ordinance

This past Tuesday, the voters of the City of Milwaukee overwhelmingly (68%) approved the sick pay ordinance. Under this ordinance, private employers in Milwaukee must provide paid sick leave to workers, who earn the benefit at the rate of one hour of sick pay for every thirty hours of work.

The Milwaukee Journal-Sentinel reports:

Employers would have to grant 72 hours of sick leave per calendar year or 40 hours if they have fewer than 10 employees.

Although the ordinance is due to take effect in about 100 days, the Metropolitan Milwaukee Association of Commerce has filed notice that it intends to legally challenge the law on numerous grounds, among others, that (1) it is inconsistent with federal and state laws for family and medical leave; and (2) oversteps the city's authority to require sick pay from employers outside the city that have employees living in Milwaukee.

I am no expert on the second issue, but the first ground of challenge seems utterly without merit.  The federal FMLA and state leaves law provide a floor under which no law may go, but states and municipalities have always been free to be more generous, and in this case, provide some paid leave to workers.  The fact that the business group believes the ordinance will cause them economic harm is not grounds for setting the ordinance aside.

I am hopeful that the court deals quickly with this matter so that the ordinance can go into effect when scheduled and start providing much-needed relief for the workers of Milwaukee when they become sick.

PS

Obama and the Future of Labor and Employment Law

With the historic election of Barack Obama as the 44th President of the United States and the substantial gains for Democrats in the House and Senate, there is almost certainty that there will be significant labor and employment law reform in the near future.

Not being a shrinking violet by any means, I would like to add my two cents about what such reform should be about.  Althought I previously posted a similar analysis of what the next President should do on the Marquette Law School Faculty Blog about three weeks ago, I want to sharpen these past comments and add some new ideas.

President-elect Obama should first focus on the following four broad areas in the labor and employment law context: labor rights, workplace anti-discrimination and civil rights, employee benefit rights, and public employee rights.

Labor Rights: The percentage of American workers covered by union contracts is now below 8%, as opposed to 16% as recently as 1985. Without unions to fight for them, workers fall behind in wages, benefits, and standard of living. Unionized workers earn more and are more likely to have pensions and health insurance than non-unionized workers.  Workers should have the freedom to choose whether to join a union without harassment or intimidation. 

President-elect Obama should therefore sign the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize and secure initial agreements with their employers.  Obama should also act to restore collective bargaining rights to nurses and other workers excluded as “supervisors,” and to ban employers’ practices of permanently replacing striking workers. He should also  sign into law the Public Safety Employer-Employee Cooperation Act to assure public safety workers who put their lives on the line every day their right to bargain collectively.  Finally, President-elect Obama should work to appoint members of the National Labor Relations Board who will work to protect employee choice by outlawing employer captive audience meetings during election campaigns and overruling Dana Corp. and putting back in place the traditional voluntary recognition bar.

Workplace Anti-Discrimination and Civil Rights:  President-elect Obama should work for legislation requiring employers to provide at least seven days of paid sick leave to employees and expanding the Family and Medical Leave Act (FMLA) to cover more workers (to employers with 20 or more employees). He should also protect the wages of working women by signing into law a legislative nullification of the Ledbetter decision, which will promote paycheck equity and help close the pay gap that leaves working women earning only 77 cents for every dollar earned by men.

President-elect Obama should also sign legislation to extend § 1983 civil rights claims to actions against federal officials so that federal employees can vindicate their constitutional rights to speech and privacy. Finally, he should expand Title VII and fully include all LGBT individuals (yes, such legislation must include transgendered individuals) under its protections.

Employee Benefits Rights: With more than 47 million Americans-–including 9 million children–without health insurance, President-elect Obama needs to sign a universal health care plan into law before the end of his first term.  This plan structure should include guaranteed eligibility, comprehensive benefits, and affordable premiums and co-payments, with subsidies for families that cannot afford the premiums.  Additionally, ERISA should be amended to provide for less preemption of state health care finance laws so that states can experiment in providing all of their citizens adequate health care.  Obama should also work to amend ERISA to provide monetary, make-whole remedies to employees who suffer from mismanagement of their employee benefits and work for the legislative nullification of the Russell/Mertens line of Section 502(a)(3) equity cases.  In this regard, I have proposed the ERISA Civil Rights Act of 2009, which will act much in the way the CRA of 1991 amended Title VII.  Among the changes, the right to compensatory and punitive damages in appropriate cases with caps, the right to a jury trial when such damage is sought, and right to make-whole, equitable relief under current Section 502(a)(3).

Public Employee Rights: First and foremost, President-elect Obama should select Justices who will overule the Garcetti case and return to Pickering and the mandate that employer efficiency interests and employee constitutional rights to speech, expression, association, and privacy be balanced under the First and Fourteenth Amendments.  As to federal employees, Congress should amend the Civil Service Reform Act of 1978 and provide that federal employees are free to bring their First Amendment claims directly to federal court under a re-structured Section 1983, without having to go through the current inadequate, administrative remedies now available.  (This would entail a newly-consituted Supreme Court overruling the Bivens case of  Bush v. Lucas)..  Such legislation would also provide whistleblowers under SOX and in other areas the protection they really need to go out on the limb and report danagerous and fraudulent conditions in the workplace.

Believe it or not, the above suggestions would merely start the process of affording American employees the same basic workplace rights as their international counterparts. Note that I have not even broached what must be an essential component of any comprehensive labor and employment law reform in this country - the institution of just cause workplace protection as the default rule for American employees. 

All of this will help return the United States to its international stature and allow it again to not only be a beacon of democracy and freedom, but also the envy of the world insofar as how it treats its working men and women.

PS

More Employers Politicking?

Wow. It looks like the big retailers are pulling out all stops to stop the Obama steamroller with captive audience meetings with their employees to engage in none-too-subtle office politicking (which JH has written about before). 

From the Wall Street Journal:

Retailers are meeting with store managers to warn how a strong showing for Democrats in the Nov. 4 election could cause what they fear would be more economic pain for their companies, in particular by potentially making it easier for unions to organize stores.

The companies are worried about presidential candidate Sen. Barack Obama's stated support for the Employee Free Choice Act, which would do away with secret balloting and allow unions to form if a majority of employees sign cards favoring unionization. The legislation, retailers fear, would have improved chances of becoming law under a Democratic administration . . . .

Home Depot Inc. in recent weeks has held meetings between its employee-relations managers and all the company's salaried employees, including district managers and store managers, on how the Free Choice legislation would change the union-organizing process.

"We think the most basic element of any democracy is the vote by secret ballot, and this bill effectively eliminates that right," said Home Depot spokesman Ron DeFeo. He said individual candidates' stances on the bill weren't discussed at the meetings.

This summer, several labor unions filed a complaint, which is still pending, with the Federal Election Commission, alleging Wal-Mart Stores Inc. essentially encouraged its managers and salaried supervisors to vote against Sen. Obama and other Democratic candidates because of their support for the Free Choice legislation. Wal-Mart said the purpose of the meetings was to educate workers about the bill and the downside of a unionized workplace.

While the Wal-Mart human-resources managers running the meetings didn't specifically tell attendees how to vote, they made it clear that voting for Sen. Obama would be tantamount to inviting in unions.

I and my co-authors, Melissa Hart and Marcia McCormick, made real clear how we feel about this office politicking in a column in The Legal Times.  This is just the addition of more employer intimidation in the workplace.

But the other things that struck me about this "balanced" piece from the WSJ is that unionism is equated with economic pain in the first paragraph. 

If economic pain means less executive compensation for company executives and more pay for the average job in better conditions, than I think they got it right.

PS

Union Influence on the 2008 U.S. Elections

Steve Greenhouse of the New York Times writes about the claimed increasing influence the Change to Win Coalition is having in this presidential election:

Success has many parents, and with Senator Barack Obama gaining a lead in many polls, the Change to Win union federation is claiming that its ads, fliers and volunteers have helped him.

Anna Burger, the president of Change to Win, a federation of seven unions, said its recent campaigning has played an important role in persuading many undecided working-class voters to back Mr. Obama, helping to lengthen his lead.

In a news briefing on Tuesday night, Change to Win officials also said their efforts might enable the Democrats to capture 60 Senate seats, perhaps even 63, up from the 57 that many Democrats were hoping for just three weeks ago. The Democrats have a 51-49 majority.

“We have launched the most aggressive political program that we think any labor movement has ever done,” Ms. Burger said. Officials with the country’s main labor federation, the A.F.L.-C.I.O., which the Change to Win unions broke off from in 2005, might disagree since that federation’s unions are doing intense campaigning as well.

Ms. Burger said a key part of Change to Win’s effort is what she called “our work-site blitzes” in which thousands of union members distribute fliers to co-workers twice a month and pro-Obama union members talk up Mr. Obama with undecided members.

I am really less interested in determining whether the success in getting union voters is because of Change to Win or AFL-CIO efforts.  It is probably both and for those like me who are unsatisfied with the current state of labor law in this country and dread another four years of Bush-style labor policies, the important things is to get Obama elected with a sizable majority of Democrats in the Senate.

PS

The Story of the Economic Collapse from Main Street

More from Bloomberg: Joblessness Rising in 12 Battleground States for Obama, McCain

The following news stories from the Associated Press this past Friday confirm that that Wall Street financial meltdown is also being felt throughout the country on Main Street.

From the Associated Press on September 19th:

Florida's unemployment rate rose to 6.5 percent in August. According to the state labor department that's the highest the state has seen in more than 13 years. The number is up from 6.2 percent in July, and up from 4.2 percent since August 2007. The state's total number of jobs lots in the past year rose to 99,100. According to federal numbers, that's the largest loss in the nation for the third month running. 606,000 residents are currently without work in the state. In Miami-Dade County, the unemployment rate is 5.5 percent, up from 3.8 a year ago, according to the U.S. Bureau of Labor Statistics.

Adjusted numbers are not available for other Florida counties, but Broward's unadjusted number is 6.1 percent, up from 3.9 a year ago. Monroe County is at 4.8 percent, and was at only 3 percent in August 2007. Florida's unemployment numbers are being pushed by job losses in the construction industry and related fields. The current national rate is 6.1 percent. Only Rhode Island saw a larger unemployment spike in the past year.

Again from the Associated Press on September 19th:

Ohio's unemployment rate rose again last month, to 7.4 percent, and the state is one of many seeing the worst joblessness in years. Michigan has reported an 8.9 percent unemployment rate for August, and unemployment hit 8.5 percent in Rhode Island, the highest in 15 years.

The loss of manufacturing jobs has pulled Ohio's rate to a 16-year high. The last time the state had 7.4 percent unemployed was in October 1992. The Ohio jobless figure tops the national rate of 6.1 percent. The state Department of Job and Family Services says 445,000 Ohio workers were out of work in August. That's nowhere close to the record of 715,200 who were unemployed in December of 1982.

Finally, one last one from the Associated Press on the 19th again:

A record number of Rhode Island workers are searching for a job in as the seasonally adjusted unemployment rate has risen rose to 8.5%.The August showing is its worst in 15 years and more than 2%age points above the national rate.Michigan's unemployment rate was 8.9% in August. The number of people looking for work in Rhode Island grew by 4,300 since July to a record-breaking total of 48,800 last month. The state unemployment rate stood at 5.1% during the same period last year.Rhode Island shed an estimated 1,200 jobs from July to August, marking the eighth-straight month of jobs losses.

Given these astounding unemployment figures, it is imperative that any bail out of Wall Street also consider how to turn around the economic carnage being felt in many states around the country. 

A bailout only focused on the financial markets neglects responding to the devastating consequences unleashed by eight years of deregulatory strategy and again establishes the need for common sense regulation of all aspects of the American economy. 

PS