Author Archive for paul-secunda
Submit Grades or Else at Florida State
posted by Paul Secunda
[Cross Posted on Workplace Prof Blog]
From Inside Higher Ed today:
Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .
Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .
As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.
“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”
With that, the crowd broke into a wave of spontaneous applause.
First, I wonder if this applies at the FSU law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I’ll leave that to the Paul Horwitz’s of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?
Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn’t even realize and one that does not inspire applause.
Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:
Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.
I don’t see where the grade penalty fits in, do you?
March 28, 2008 at 12:29 pm
Posted in: Employment Law
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Organized Labor’s International Law Project
posted by Paul Secunda
[Cross posted on Workplace Prof Blog]
Matthew Muggeridge of the National Right to Work Foundation has posted in The Federalist Society’s Engage 9.1 magazine: Organized Labor’s International Law Project?: Transforming Workplace Rights into Human Rights.
Here’s some highlights:
For more than half a century, large U.S. labor unions, alone or in concert with other labor organization federations, have regularly filed complaints with the International Labour Organization (ILO) against the U.S. Government. This article analyzes the significance of organized labor’s forays into international law through the ILO process . . . .
We can see from this quick overview of a half-century of complaints how the ILO’s Committee on Freedom of Association went from a blunt dismissal of a complaint as unsubstantiated and “vague” in 1950, to requesting wholesale federal and state legislative action in 2007. Th ere is no reason to suppose that the CFA will hesitate in recommending that the “Bush Board’s decisions” be condemned as well, as a violation of international law and the commitments entered into by the United States.
What happened over these fi fty years to make U.S. labor law so unacceptable to the international labor oversight body? Evidently, over fifty complaints during the span of nearly sixty years have convinced the ILO that the U.S. is not living up toits commitments. What are those commitments? The U.S. has signed no relevant new ILO Convention in that time span. Any development of labor law since 1950 has worked to grant U.S. workers greater employment and organizing protection . . . .
To conclude, non-participation in the ILO process will not prevent international scrutiny of U.S. labor law. Moreover, as international legal machinery goes, the ILO process does not pose as serious a threat to national sovereignty as does the International Criminal Court, for example. Nonetheless, ILO processes are a lobbying tool for organized labor and a potential embarrassment for the United States as long as it participates in them and does not comply with the CFA’s interpretations of ILO Conventions that the U.S. has not ratified. Consequently, the U.S. government might well give serious consideration to withdrawing from ILO membership, while candidly explaining its reasons for doing so.
Now, this is not a surprising commentary from someone affiliated with the National Right to Work Foundation. And I don’t think any serious politician (and heck, W didn’t even do it) would give “serious consideration” to withdrawing the US from ILO membership. Shoot, we should be the ones leading the world in showing how workers’ rights should be protected. Haven’t we pulled out of enough international treaties yet?
But I myself have questioned in the past the importance of symbolic filings with the ILO, when money can be better used domestically for grass roots organizing and domestic political campaigns.
In response to that post, Deborah Greenfield of the AFL-CIO wrote in the comments:
March 24, 2008 at 10:57 am
Posted in: Employment Law
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Tipping Leads to Racial Pay Disparities?
posted by Paul Secunda
From Freakonomics by Ian Ayres in the New York Times:
A few years back, I got interested in taxicab tipping – and what influences how much people tip. So together with Fred Vars and Nasser Zakariya, I collected data on more than 1,000 cab rides in New Haven, C.T. and crunched the numbers. The study (published in The Yale Law Journal) found — after controlling for a host of other variables — two independent racial effects:
1. African-American cab drivers, on average, were tipped approximately one-third less than white cab drivers.
2. African-American and Hispanic passengers tipped approximately one-half the amount white passengers tipped.
African-American passengers also seemed to participate in the racial discrimination against African-American drivers. While African-American passengers generally tipped less, on average they also tipped black drivers approximately one-third less than they tipped white drivers . . . .
However, a new study co-authored by the world’s leading number cruncher on tipping, Michael Lynn, has found a similar effect in a Southern restaurant. His article, “Consumer Racial Discrimination in Tipping: A Replication and Extension” is based on 140 surveys that he and his co-authors:
…
collected during three lunch shifts (11:00 a.m. to 4:00 p.m.) at a [large national chain] restaurant located in the southern United States.Focusing on just blacks and whites, the study once again found that:
Consumers of both races discriminated against black service providers by tipping them less than white service providers.
Ayres then gives us the employment discrimination law angle: “But as a law professor what is most interesting about Lynn’s article is his suggestion that an employer might be held liable under Title VII of the Civil Rights Act for establishing a tipping policy that has a disparate impact against African-American employees . . . But the harder question is whether the racial disparate impact of tipping is legally justified by the legitimate interest of businesses to enhance customer service.”
Very thought-provoking article, with some interesting tidbits about the history of tipping practices in this country. Should tipping be curtailed to prevent discriminatory impacts in pay practices?
March 21, 2008 at 12:27 pm
Posted in: Employment Law
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The First-Person Narrative in Legal Scholarship
posted by Paul Secunda
If Jeff Lipshaw taught me one thing (and really he has only taught me one thing), it is that you never respond to anonymous blog commentators.
So don’t consider this a response to the anonymous commentators to my post on my lateral hiring market essay (I think Scott Moss answered them satisfactorily), but rather to consider whether there is something that first-person narrative brings to legal writing that is otherwise missing.
I know my friend Nancy Levit of UMKC School of Law thinks so. Along with Allen Rostron, Nancy started a series in the UMKC Law Review last year called “Law Stories: Tales from Legal Practice, Experience, and Education,” 75 UMKC L Rev 1127 (2007). Their purpose in starting this project was to expand on the art of legal storytelling:
Over the last few decades, storytelling became a subject of enormous interest and controversy within the world of legal scholarship. Law review articles appeared in the form of stories. Law professors pointed out that legal decisions were really stories that told a dominant narrative. Critical theorists began to tell counterstories to challenge or critique the traditional canon. Some used fictional stories as a method of analytical critique; others told accounts of actual events in ways that gave voice to the experiences of outsiders.
Storytelling began to make its way into legal education in new ways. For instance, a major textbook publisher developed a new series of books that recount the stories behind landmark cases in specific subject areas, such as Torts or Employment Discrimination, to help students appreciate not only the players in major cases, but also the social context in which cases arise. Meanwhile, Scott Turow, John Grisham, and a legion of other lawyers invaded the realm of popular fiction and conquered the bestseller lists.
Legal theorists began to recognize what historians and practicing lawyers had long known and what cognitive psychologists were just discovering – the extraordinary power of stories. Stories are the way people, including judges and jurors, understand situations. People recall events in story form. Stories are educative; they illuminate different perspectives and evoke empathy. Stories create bonds; their evocative details engage people in ways that sterile legal arguments do not.
Because, like Nancy and Allen, I believe that legal storytelling is not only educative, but also a way to illuminate different perspectives, I chose to contribute this year to the Second Law Stories Series. My paper, Mediating the Special Education Front Lines in Mississippi, comes directly from my first-hand experiences as a special education mediator in Mississippi. I felt that there was no better way to explain the complexity involved in legal situations when a child who has been imprisoned for a violent crime still must receive special education services.
Similarly, on a lighter, more self-deprecating note, I felt that the narrative voice would be the best way to get across the complexities of the law professor lateral market. Using storytelling again as my device was a way to evoke sympathy, hopefully induce laughter, but also certainly to educate about the difficulties of the process. In the feedback I have received from non-anonymous commentators, I believe I have been largely successful in this endeavor.
So, I ask you, readers of Concurring Opinions, should legal storytelling have a continuing, meaningful place in legal scholarship? And if so, aren’t some forms of legal blogging (not all) nothing more than elaborate ways of telling a good legal story and therefore, also a type of legal scholarship?
March 19, 2008 at 10:58 pm
Posted in: Law School (Scholarship)
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Sadomasochism Sex with Student=Professor Fit to Teach?
posted by Paul Secunda
[Cross Posted on Workplace Prof Blog]
OK, I have seen some pretty crazy stories in my day while blogging in these parts, but this just might take the cake. What makes it even more interesting is that the story is related to us by the Dank Professor, who describes himself as someone who “openly engaged in propinquitous dating, dating students and having many wonderful friendships with many of my students and their families.”
In any event, on to the sadomasochism:
The Albuquerque Journal reported yesterday that University of New Mexico professor of English Lisa Chvez was found fit to teach by the UNM Deputy Provost Richard Holder. Provost Holder reported to the English department faculty that he determined that the faculty member had posed on a sadomasochism website with at least one of her graduate students, and that Professor Chvez should not have to face a faculty ethics inquiry.
In a March 10 letter to English department faculty, Deputy Provost Richard Holder said he thinks associate professor Lisa Chvez used poor judgment in participating in the Web site’s activities with one of her students.
But, Holder goes on to say, “In my mind this participation did not rise to the level of calling into question her ‘unfitness for duty.’ ”
Okay. What then does qualify? The Provost says that it appears the conduct was consensual between adults away from campus, but what type of power does a professor have over graduate students in this type of situation? In the consensual university student relationship context, I have argued in a law review article previously that if a professor has supervisory authority over the student, we should look askance over whether the university should normally permit such a relationship.
And I wasn’t talking about sadomasochistic relationships.
For his part, the Dank Professor concludes:
Findings of no undue influence, no hostile environment, no use of university facilities means in the dankprofessor’s opinion, that there is no case against the professor. Bravo to the University of New Mexico administration for doing the right thing.
But given the upset reaction of members of the English Department (”Scharnhorst said none of his colleagues are angry that [the professor in question]] posed on the Web site. “What everyone finds troublesome is the fact that she was involved with graduate students,” he said.), I think an appeal of the Provost decision is a safe best and given the lurid subject matter, this is not the last we have heard of this case for sure.
March 19, 2008 at 10:51 am
Posted in: Employment Law
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Is Mississippi on the Verge of a Union Movement?
posted by Paul Secunda
[Cross-Posted on Workplace Prof Blog]
I do not jest. Consider that just last week the Clarion-Ledger of Jackson reported:
A vote to unionize the Johnson Controls plant in Madison County was unsuccessful.
“We were 34 votes short,” said Gary Casteel, United Auto Workers regional director.
The facility supplies seats and other components to Nissan. The United Auto Workers was seeking to represent the workers.
The final tally was 213 for unionizing and 145 opposed.
Now, I want to argue that 145 votes for unionization in the heart of the Deep South is nothing short of an amazing accomplishment and Southern workers are being to understand the benefits that come with unionization. Although there are currently over 100 local unions in Mississippi (again, not kidding), there is only one lawyer I know in the state that practices union-side labor law full-time (hello Roger Doolittle!).
But here I want to go back over fifty years of history and invoke the memory of the great Professor Bill Murphy, who recently passed away, who wrote in a prescient piece in the Mississippi Law Journal in 1954. I describe his idea in a recent tribute I penned to him in the same Journal:
In Bill’s article on “The ‘Right to Work’ ‘Statute,” “[he] wanted lawyers to understand how labor unions sought security, the arguments for and against such security measures, the origins of right-to-work laws, and the litigation that the laws had caused.” Murphy’s commentary on these laws was unusually astute and he proved prescient when he observed that “a cheap, docile labor supply” in the South would attract industry which would inevitably lead to the rise of unionism in the region. Indeed, in the last decade as Mississippi has been successful in luring the likes of Nissan, Toyota, and other large corporations, Bill’s prediction about the eventual increase in unionism in this state no larger appears far-fetched.
I hope where ever you are Bill, that you are smiling about these favorable developments.
March 18, 2008 at 2:40 pm
Posted in: Employment Law
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Failing to Heed the Lessons of Enron
posted by Paul Secunda
[Cross posted on Workplace Prof Blog]
Lost in the business disaster that is Bear Stearns’ acquisition by JP Morgan Chase this past weekend is the plight of Bear Stearns employees after this collapse.
Not only our many jobs lost, but according to Lisa Fairfax at the Conglomerate Blog, a lot of these employees did not learn from the Enron debacle and had a lot of their pensions tied up in company stock:
I know we are trying to move on, but I have heard several news sources and commentators point out that Bear Stearns employees own some 1/3 of the company’s stock. That number seems striking and a bit surprising, particularly given all of the hoopla surrounding Enron and the fact that its employees held so much of the company’s stock when it collapsed. Indeed, I thought one important lesson from Enron, at least for employees, was to diversify. Apparently not. To be sure, there are many good reasons to invest in your company’s stock. Then too, a short while ago Bear Stearns did not appear like it was heading for disaster (but then again neither did Enron). Moreover, it is not clear that Bear Stearns employees have not diversified and hence perhaps there are employees who did not have their entire nest egg in the Bear Stearns basket. Unfortunately, it seems more likely that employees have once again found themselves in a situation in which they not only face potential job loss, but also the loss of their retirement.
As I tell my employee benefits law students every semester, the statistics indicate that a remarkable amount of employees believe that their safest retirement investment is their own company, based apparently on some belief that “really” know what’s going on where they work.
Workers need to resist this urge and practice fundamental modern portifolo theory with their defined contribution plans and diversify. More than that, advocacy groups, unions, and employers need to do a better job of educating their employees about what can happen when a 401(k) plan is not adequately diversified not only between sectors (financial vs. tech. vs. health), but also across investment types (bonds vs. stock, etc).
Unfortunately, to the extent that Bears Stearns workers have indeed lost their retirement savings, for a lot of them it will not be easy to make up the deficit, even by working through retirement. Expect many lawsuits to follow, including a few ERISA ones.
March 18, 2008 at 2:13 pm
Posted in: Employment Law
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Tales of a Law Professor Lateral Nothing
posted by Paul Secunda
For those of you like Scott Moss who followed every word, sentence, nay punctuation mark, of my previous series of posts here on the blog on the lateral hiring market, I am pleased to announce that I have turned all that material (with some additional extras!) into an essay, Tales of a Law Professor Lateral Nothing.
Here’s the abstract:
This Essay seeks to uncover the mysterious world of the law professor lateral hiring market, which has become increasingly important in the last number of years as law schools seek to build their reputations in this U.S. News & World Report world through the hiring of prominent faculty members.
Although the advice and guidance given in this Essay are sometimes written with tongue firmly in cheek, I do attempt to accomplish two important objectives here. First, there has been scarcely anything written about the lateral hiring market for law professors, as opposed to the cottage industry that has been devoted to the entry-level law professor hiring market. This Essay methodically takes the lateral-to-be professor through every step of the lateral process from the first-person perspective of one who has been on the market for three years and successfully lateraled this past year.
Second, and perhaps more importantly, I want to contribute to the process of bringing back to legal academic writing the form of the first-person narrative. Like my colleague, David Case, I believe that, “the narrative voice is an important, and perhaps underutilized, tool in deconstructing the arbitrary processes of the legal academic hiring market.” See David Case, The Pedagogical Don Quixote de la Mississippi, 33 U. Mem. L. Rev. 529, 530 n.2 (2003).
It is still in the draft stage, so I would appreciate people’s criticisms, thoughts, and strong, violent reactions.
March 17, 2008 at 11:26 am
Posted in: Law School (Hiring & Laterals)
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The Constitutionality of Pre-Employment Drug Testing for Public Employees
posted by Paul Secunda
As I wrote today on Workplace Prof Blog, Ross Runkel’s Employment Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008) (case link in Workplace Prof post), a case discussing the permissibility of drug testing public employee.
Ross summarizes the case:
Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier’s favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part – concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.
The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them. The court rejected that argument, reasoning that the United States Supreme Court’s decision in Chandler v. Miller, 520 US 305 (1997) “makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited.” The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be “special” and not merely “symbolic.”
I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees’ Fourth Amendment rights to be free from unreasonable search and seizure.
The use of the word “symbolic” in the court’s decision brings to mind Justice Scalia’s dissent in the Von Raab case concerning federal custom agents. Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee’s 4th Amendment rights for symbolic purposes.
The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area. It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.
March 14, 2008 at 12:09 pm
Posted in: Employment Law
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Does Religious Observance and the Workplace Mix?
posted by Paul Secunda
[Cross-posted on Workplace Prof Blog]
I argue strongly in a recent paper that it is inappropriate for employers to provide workplace chaplains in the workplace for their employees:
In addition to political speeches, more companies are hiring ministers to serve their workers. Some critics believe that these ministers have another agenda – to convert. Evangelical Christian organizations are offering Christian ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are becoming part of the American workplace.
A number of companies have been formed to provide employer-sponsored religious services to employees, including Marketplace Ministries, Corporate Chaplains of America, Workplace Chaplains, and Chaplains at Work. For instance, Marketplace Ministries, Inc., now has 1700 chaplains and makes on-site visits to 300 companies in 38 states. Marketplace Chaplains U.S.A. employed 1,629 chaplains last year.
While the accommodation of voluntary religious observance in the workplace is certainly not objectionable, this growing corporate sponsorship and encouragement of religious observance creates a significant danger of compulsion. The agencies with which employers contract to provide religious services may also have a deeply held mission that may lead them to borrow employers’ authority over employees in order to gain an audience. Although limits exist on the ability of employers to proselytize in the workplace under Title VII and parallel state anti-discrimination law, the relative lack of cases in this area suggest that employees do not yet feel comfortable fighting back against these workplace practices.
A few days ago, CNN.com had an article on the same topic:
Religion, like sex and politics, once was considered inappropriate watercooler talk. Not anymore. Prayer sessions, religious diversity groups and chaplains like Reece, along with rabbis and imams, have become more common across corporate America in the past decade.
Fifty percent of those questioned in a 2002 Gallup poll said religious expression should be tolerated in the work place while another 28 percent thought it should be encouraged. That’s compared to 21percent who didn’t see a place for religious expression on the job.
I might be in the minority here, but I am as well as far as being part of a minority religion too (Jewish). Perhaps, I see compulsion where others don’t, but I think employers should be very circumspect in encouraging religious observance in the workplace and potentially alienating many workers.
March 12, 2008 at 1:02 pm
Posted in: Employment Law
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Reading Book on Break=Racial Harassment?
posted by Paul Secunda
[Cross-posted on Workplace Prof Blog]
Here is a remarkable story, highlighted by the Freedom for Individual Rights in Education’s (FIRE) The Torch, and brought to my attention by Dennis Nolan (South Carolina):
In a stunning series of events at Indiana University – Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.
Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students’ response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.
But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.
A few weeks later, Sampson was notified by Marguerite Watkins of the school’s Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room. Once again, he attempted to explain the book’s content, but Watkins too had no interest in hearing it. Despite his not being given a chance to defend himself, he subsequently received a letter from Lillian Charleston of the AAO, dated November 25, 2007, informing him that AAO had completed its investigation of the matter. The letter stated,
You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence…you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black coworkers.
It went on to say that according to “the legal ‘reasonable person standard,’ a majority of adults are aware of and understand how repugnant the KKK is to African-Americans…” As a result of AAO’s findings, Sampson was ordered to refrain from reading the book in the immediate presence of his co-workers and to sit apart from them whenever reading it.
To paraphrase EMF: “That’s Unbelievable.” So wrong on so many level, it reminds me of this blog post from the past. And the issues are not limited to employment discrimination ones, but also raise issues of prior restraint, freedom of speech and expression, the ability of an employer to control the off-duty conduct of an employee, and the allegedly one-sided nature of the investigation. Both Eugene Volokh and David Bernstein have highlighted the dangers that an over-aggressive application of employment discrimination laws poses for First Amendment rights in the public employment context.
Let’s hope that wiser heads prevail and this disciplinary action is overturned by those who understand the purpose and policy behind employment discrimination laws.
March 5, 2008 at 4:35 pm
Posted in: Employment Law
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Opening the Floodgates of Litigation and Civil Rights Litigation
posted by Paul Secunda
For employee benefits law geeks like myself, the decision in LaRue v. DeWolff, Boberg, and Assocs. was a watershed moment for a Supreme Court that had been reluctant to grant private rights of action to employee participants under ERISA. Although advocates for employees have celebrated the arrival of 401(k) breach of fiduciary claims, there have been many more commentaries around the internet about how LaRue will likely “open the floodgates of litigation” and overwhelm federal courts with frivolous ERISA class actions. Some examples:
Employers with defined contribution plans will likely face increased fiduciary liability exposures after the U.S. Supreme Court ruled last week that plan participants can sue to recover individual account losses as a result of a fiduciary breach, attorneys say. – Business Insurance Magazine, Feb. 25, 2008
“It will open the door to a lot more litigation. I don’t think it will be an avalanche, but plan sponsors are definitely looking at death by a thousand cuts,” said Stephen Rosenberg, an attorney with The McCormack Firm in Boston, who blogs on ERISA issues. – Lawyers USA, March 10, 2008
March 4, 2008 at 11:50 am
Posted in: Supreme Court
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Pension Parity Sought by Retired Black Police Officers
posted by Paul Secunda
[Cross posted on Workplace Prof Blog]
To those who believe that the bad ol’ days of segregation and unequal treatment of minorities is behind us, I give you this story from the LA Times about retired black police officers in Georgia who are still trying to get a remedy for past injustices:
A “whites only” sign was still hanging on the precinct house water fountain in 1964 when James Booker joined the suburban College Park police force. He soon learned it wasn’t the only thing off limits to Georgia ’s new black recruits.
Until 1976, black officers were blocked from joining a state-supported supplemental police retirement fund. Today, white officers who entered the fund before that year are taking home hundreds of dollars more every month in retirement benefits than their black counterparts.
The now-retired black officers have been lobbying hard to change that, but eight years after they began an effort to amend the state constitution and give them credit for those lost years is stalled in the Legislature. The Georgia Constitution prohibits the state from extending new benefits to public employees after they have retired.
If lawmakers don’t take action in the final weeks of the legislative session, the battle will move to the courthouse this spring, said state Rep.Tyrone Brooks, an Atlanta Democrat and civil rights activist leading the officers’ campaign.
Come on, Georgia, do the right thing. Give these police officers who gave the best years of their lives the pension payments they have always deserved. If not, this situation will continue to be an unwelcome reminder that much still has to be accomplished in the area of racial justice in the workplace, especially in the South.
March 3, 2008 at 11:01 am
Posted in: Civil Rights
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The Skidmore Conundrum: Admin Law Wrapped Inside Employment Discrim Law
posted by Paul Secunda
I’m going Pasquale on ya (the guy is amazingly blog-prolific) and doing two posts in a row today.
Yesterday, the U.S. Supreme Court handed down its opinion in the case of Federal Express v. Holowecki, which decided the standard for what constitutes an administrative charge of discrimination under the Age Discrimination in Employment Act (ADEA). The particulars of the holding can be found here, but I wanted to focus on the non-employment discrimination law parts of the case. In particular, the administrative law discussion in Holowecki.
Not teaching Admin Law, but teaching classes like Employment Discrimination and Labor Law, in which admin law plays a large role, I’ve been vaguely keeping track of the debate about Chevron deference vs. Skidmore deference, and questions about what Skidmore deference exactly is.
In Holowecki, the Court wrote thusly on the deference the Equal Employment Opportunity Commission’s interpretation of its own regulations are due:
In our view the agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect “ ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134 (1944)). As such, they are entitled to a “measure of respect” under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533 U. S. 218, 227–239 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency’s implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC’s Tampa field office did not treat respondent’s filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer.
These undoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC’s previous directives. We see no reason to assume the agency’s position—that a charge is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988).
So, is the Court breaking new administrative law ground here or this part of the same ol’, same ol’ for this part of the law? Employment discrimination minds want to know. Ethan “Chicken Man” Lieb, are you out there in cyberland? Kristin Hickman?
February 28, 2008 at 11:50 am
Posted in: Administrative Law
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Labor Law: Not Dead Yet
posted by Paul Secunda
[modified from a similar, more technical post at Workplace Prof Blog]
“Bring out your dead.” Monty Python’s Holy Grail
Especially in Labor Law, whose irrelevancy and death its opponents have been preaching for years (shoot Solove doesn’t even have a separate post category for Labor Law, had to post this under Employment Law), I’ve always loved when something I’ve recently taught in class dovetails nicely into a current event being discussed in the popular press. Case in point: yesterday in Labor Law class, we discussed the duty to bargain in good faith under Section 8(d) of the NLRA and the per se violation of Section 8(a)(5) that occurs when a company says it has a present inability to pay a union’s bargaining demand and then refuses to substantiate those claims by giving information to the union. Under Truitt and Detroit Edison, such information is due to the union so it can carry out its role as bargaining representative of employees.
So yesterday after class, my trusty research assistant Brent Klein wrote: “the UAW went on strike at American Axle in an attempt to gain access to company financial documents. The union claims these documents are needed to justify the across the board wage and benefit cuts that American Axle is requiring to move labor contract negotiations forward. The fact that distinguishes this situation from that of the Big Three (which recently negotiated their own contracts and accepted similar cuts) is American Axle turned a $37 million profit last year, a far cry from the 38.7 billion loss suffered by General Motors last year.”
Ah, the continuing relevancy of labor law.
Here’s the article from The Detroit News.
February 28, 2008 at 11:25 am
Posted in: Employment Law
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The Green Bag Asks: Your Law School (Really) Got Game?
posted by Paul Secunda
This year, my last, at Ole Miss Law School, I was asked to Chair an ad hoc faculty committee on law school rankings. Like many law schools, ours has been flustered by the seemingly arbitrary way that our school has fluctuated in the U.S. News & World Report yearly rankings. And like others, we wanted not to care about such capricious things, but alas, others (including prospective students, current students, and alumni to name a few) did care. So as an institution we (myself and four faculty committee members) set out to study the factors one by one and try to determine where we could change policies, add money, etc., to constructively move factors that we had some control over.
What struck me during last semester as the committee met on a bi-weekly basis was that some schools that were perpetually labeled elite (by being in the First Tier) really did not have that many prolific or productive scholars. On the other hand, the opposite was also true: many a Third and Fourth Tier (though certainly not all) were bustling with faculty activity and innovation. So what was going on? Why wasn’t any current ranking system capturing these characteristics of the law school market?
Though I have not figured out the answer to this question, Inside Higher Ed reports today that The Green Bag Journal plans to put law school’s extravagant claims about having the best and greatest faculties in the universe to the test:
On their Web sites and in the other marketing materials that law schools distribute to raise their profiles — sometimes derided as “law porn” — virtually every law school boasts of having a faculty made up of stellar scholars, brilliant teachers and selfless public servants. “We continue to add depth to our already diverse and multifaceted faculty — excellent teachers whose high-quality research impacts leading academic and public policy issues,” reads the Web site of Northwestern University’s law school . . . .
But how are applicants — for admission and/or jobs — to know whether the schools are living up to their promises on faculty quality, that all-important indicator of the institutions’ overall quality? asks the Green Bag, which describes itself as “an entertaining journal of law.” . . . .
February 26, 2008 at 10:13 am
Posted in: Law School (Rankings)
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Pornography and Public Employment: Further Implications of Garcetti
posted by Paul Secunda
Having just returned from speaking at a great conference hosted by the First Amendment Law Review at UNC on all things Garcetti, it is interesting to see many of the various issues discussed there come to the fore in a recent case, Davis v. McKinney, No. 07-20184 (5th Cir. Feb. 21, 2008), decided by the Fifth Circuit this past Thursday. For the uninitiated, Garcetti v. Ceballos (U.S. 2006) is the watershed public employment free speech case that drastically cut down on public employees First Amendment expression rights while such employees are working pursuant to their official duties.
In Davis, here are the interesting background facts:
Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide Compliance Officer . . . .
[After applying for a promotion, Davis was involved in an audit investigation of physicians' computers.] Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography . . . .
Davis asked Corum [her direct supervisor] to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.
Thereafter, Davis was given mundane tasks and she faced continuing harassment from those employees and supervisors who did not want her to continue with her investigation. She therefore sent an internal complaint letter regarding the “unethical and illegal” activity directed at her and alleged, “that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees.” In this same letter, Davis wrote that, “because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices.” This last action to go whistle blower would turn out to be crucial.
February 25, 2008 at 1:53 pm
Posted in: Employment Law
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Blogging to Be a Lateral
posted by Paul Secunda
As much as I want to chime in on the Battlestar Galactica interview that the CO guys scored, it is hard for me to stay too long away from lateral market issues. So consider this the lost “Part 11″ of my previous lateral market series.
As highlighted by Blog Emperor Caron today on TaxProf, Jay Brown (Denver) has posted an interesting new paper on SSRN: Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law Rankings.
Over the months, Jay has asked me to review various iterations of his paper and I had a chance to think about some of the arguments. Among his other thought-provoking arguments is that blogging may be a cost-efficient way for law schools to increase their rankings:
The paper also studies the impact of law blogging on rankings in the US News. In the short term, blogging can disproportionately benefit law schools and faculty outside the top tier. Blogs can enhance the reputation of the sponsoring faculty member, enable them to route around the biases inherent in the system of law review placements and SSRN downloads, permit a level of participation in the legal debate that might otherwise not be available, and facilitate the dissemination of information important to alumni and other constituencies. Most critically, however, they represent a cost effective mechanism for improving a law school’s reputational rankings and, perforce, its overall rankings in the infamous US News and World Report.
I think I largely agree with Jay’s points, but want to add another potentially provocative assertion here: good blogging can be an excellent way to not only get noticed on the lateral market, but for getting hired in that market. Jay notes that some day higher ranked schools may come to understand the advantage of having a high-profile blogger on their faculty and rather than start their own faculty blogs or encourage their faculty to start blogs will in essence purchase the services of an already well-regarded one for their school.
Now, I don’t think law schools have started to hire law professor bloggers in drove, but there is a substantial list of full-time bloggers who have moved schools in the last three or so years. And no, I am not arguing that Brian Leiter would not have made his way to Chicago without his multiple blogs. I think this theory works best with someone who is in the lower second tier or in the third and fourth tiers. These individuals have a harder time getting noticed in the law professor community from their current academic platforms and are looking for ways to get their work out and be invited to conferences and symposia. So not only only does blogging certainly help with one getting newspaper and media interviews, but it also can pique the interest of law school appointment committees.
Finally, if Jay is right that good blogging helps increase a school’s reputation, then it is in a school’s best interest to start hiring bloggers to increase their reputation scores (and yes, I recognize my own self-interest in making this point, but I really believe it helped me during the lateral process that more people already knew who I was through Workplace Prof). Again, I think this point is more valid for lower-ranked schools where there is more room to grow in reputation ranking. Nevertheless, even elite schools who are bunched closely together in various rankings may do well to get the added public relations push that comes with having a well-known blogger on faculty.
In any event, go read Jay’s great paper and feel free to give your comments to him either here or through his own blog, Race to the Bottom.
February 21, 2008 at 11:30 am
Posted in: Law School (Hiring & Laterals)
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Justice Redux: The Impact of the Same Justice Writing on the Same Issue Years Later
posted by Paul Secunda
Today, a very important ERISA remedies case was handed down by the Supreme Court in LaRue v. DeWolff, Boberg, and Assocs. The Court held, “that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account.” Or in other words, an employee 401(k) account holder can now sue their employer/plan administrator for breaches of fiduciary duty which cause a loss to their account.
NOW WAIT! Before you stop reading, I promise this post is not about ERISA (God Forbid).
Instead, I want to get readers’ insights on a point I made today in my post on Workplace Prof (there is no such thing as blogging too much, you Doubting Thomases) entitled: “Reflections on LaRue”:
Justice Stevens was the perfect person to write the majority opinion (joined by Souter, Breyer, Ginsburg, and Alito) because twenty-three years earlier he wrote the decision in the Russell case, which found that consequential damages were not permitted under a Section 502(a)(2) breach of fiduciary duty claim. His understanding that Russell applied to the the meaning of a plan loss in the defined benefit plan context as opposed to the defined contribution plan (401(k)) context of this case, carries considerable weight in trying to decide the relationship between LaRue and Russell. In fact, and this is rank speculation on my part, I wonder if Alito joined the progressives because he was particularly swayed by the meaning of that case given to it by its original author.
Now, I understand that most of you do not understand the underlying ERISA-speak going on in that passage. Fair enough. But what about the thought that an otherwise reluctant Justice (in my example, Alito) will join an opinion because he is particularly swayed that a previous precedent does not apply because the same Justice (in this case, Stevens) wrote on the issue today and many years ago (in this case, 23 years ago) and says the cases are distinguishable?
I can think of similar situations in other areas of labor and employment law (including in the federal employment Bivens context in Bush v. Lucas with Justice Brennan’s views on that issue). Does this phenomenon exist in other areas of the law? Examples or counter-examples (or as my colleague, Chris Green, talked about during his philosophy lecture yesterday on “Epistemic Parity of Testimony and Perception,” dis-analogies)?
And to your understanding, does the twice-writing Justice gain additional authority for his or her views on the opinion because he or she has written persuasively on the opinion before? I also might point out that in LaRue, Alito might have been willing to follow Stevens because Stevens was joined by Rehnquist, Burger, O’Connor, and Powell in his previous opinion in Russell.
What say you fellow law professors with way too much time on your hands?
February 20, 2008 at 3:58 pm
Posted in: Employment Law
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The Distressing State of Muslim Employment Discrimination in the United States
posted by Paul Secunda
Cross-posted on Workplace Prof Blog:
These numbers from a recent article by Adam Liptak in the New York Times could be construed to suggest that Muslims in the United States are being targeted by workplace discrimination, harassment, and retaliation, but are not gaining sympathy from the courts in the current political environment:
The decisions Mr. Breinholt collected do provide a snapshot of public and judicial attitudes. Beyond the terrorism cases, two trends are clear: the number of civil cases brought by Muslim plaintiffs is growing fast, and the plaintiffs almost always lose.
There were, for instance, 69 employment discrimination decisions involving Muslim plaintiffs in 2007. Only one involved a victory, if you can call it that.
Abdul W. Azimi, a meat slicer in Portland, Me., sued his employer, Jordan Meats, for what an appeals court called “myriad and outrageous” mistreatment. Mr. Azimi found pieces of pork in his jacket, a picture of Osama bin Laden in his locker and his shoes in the toilet. A Maine jury ruled in his favor but awarded him no damages, leaving him with only a judicial declaration that his employer had violated the law.
Clearly, Muslim plaintiffs should have the same equal justice under the law as any other American citizen. Although there are many frivolous employment discrimination claims filed in any given year (my own practice experience on the management-side attests to this), these numbers are well beyond what one would expect in a random sampling of employment discrimination cases and point to a troubling trend.
Hat Tip: Jack Sargent
PS
February 19, 2008 at 3:15 pm
Posted in: Employment Law
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