Author: Paul Secunda

14

Submit Grades or Else at Florida State

grdaplus.jpg[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?

2

Organized Labor’s International Law Project

nrtw-header.jpg[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:

Read More

9

Tipping Leads to Racial Pay Disparities?

tipjar.jpgFrom 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?

13

The First-Person Narrative in Legal Scholarship

storytelling3.jpgIf 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?

4

Sadomasochism Sex with Student=Professor Fit to Teach?

sticksandstones_003.jpg[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.

2

Is Mississippi on the Verge of a Union Movement?

mississippi.jpg[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.

unionyes.jpgNow, 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.

1

Failing to Heed the Lessons of Enron

bearstearns.jpg[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.

4

Tales of a Law Professor Lateral Nothing

boss_button.gifFor 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.

0

The Constitutionality of Pre-Employment Drug Testing for Public Employees

hypodermic_needle.jpg 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.

3

Does Religious Observance and the Workplace Mix?

church.gif[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.