Archive for the ‘Employment Law’ Category
Doe v. Wal-Mart: Must Common Law be Reformed to Protect Workers?
posted by Michael Zimmer
Outsourcing, with or without offshoring, through extended supply chains of goods and services has come to be a common way to organize a business. Using contract law to divide and subdivide what was once a single enterprise (or start one from scratch) into separate legal entities is ever more useful to businesses as they try to cut their costs to become ever more competitive. If vertical integration was once the norm – e.g., Ford’s River Rouge plant where iron ore, coal, sand, rubber came in one end and Ford cars came out the other – the norm is now to have flat and horizontal relation-based groups of legally independent entities that can stretch around the world. The business entities farthest from the core of the enterprise frequently are almost ephemeral in to their organization, ownership and even life span. These frequently operate at the fringe of the formal economy and often in the informal economy where they escape coverage by the domestic labor and employment laws of the place where the work is performed. “Middlemen” operated as a bridge between the core enterprise and the far end of the supply chain where the productive work is actually performed.
The common law generally favors this type of private ordering in part because it looks at so many issues through a lens that sees only the two parties immediately involved in the transaction. The common law does not generally take too much account of the effects on third parties, including workers participating in the full enterprise from one end of the supply chain to the other. What is becoming ever more clear is that the common law leaves labor and employment interests in the dust, unable to keep up, incapable of protecting workers.
A recent common law case demonstrates the freedom enterprise has to organize its affairs to its own interests while escaping any obligation to workers down line in the supply chain. In Doe v. Wal-Mart Stores, Inc., plaintiffs were employees of enterprises located around the world that make and sell goods to Wal-Mart. Wal-Mart’s contracts with plaintiff’s employers all incorporate Wal-Mart’s Code of Conduct obliging these suppliers to provide basic labor standard protections to their employees and allowing Wal-Mart to monitor compliance including canceling contracts if the suppler “fails or refuses to comply” with the Code. Requiring suppliers to agree to the Code shields Wal-Mart from attack, including consumer boycotts, for selling goods made by child labor or under other sweatshop conditions. Nevertheless, the workers at the ends of the supply chain were in fact not provided the labor protections the Code claimed to mandate. Claiming injury from their employers’ mistreatment, plaintiffs sued Wal-Mart because it failed to either monitor or enforce compliance with its Code. The Ninth Circuit, applying traditional common law, rejected all four of plaintiffs’ claims. First, plaintiffs were not third party beneficiaries of the contracts between plaintiffs’ employers and Wal-Mart. Second, Wal-Mart was not a joint employer of these employees with their employers. Third, Wal-Mart owned no duty to plaintiffs and so it could not to be held to be negligent. Fourth, Wal-Mart was not unjustly enriched by the employers’ mistreatment of the plaintiffs. In short, independent contractor law allows Wal-Mart to arrange its legal relationship with its supplier to their mutual advantage while also cutting off the claims of the employees of the suppliers. As has been true from the earliest sweatshop days in the garment business, the actual producers are completely contingent, ready to disappear and to reappear in a new format at a new location at a moment’s notice in order to avoid any obligations owed the workers. Sweatshop conditions have grown far beyond the garment industry to include electronics and many other labor intensive businesses.
So, ironically, those interested in workers’ rights might need to start thinking about reforming the common law, at least as it applies to employees, if law is to be relevant to worker protections. For the purposes of worker protection, enterprises may have to be reconceptualized so that the Wal-Marts of this world are viewed as a single enterprise from the beginning to the end of the supply chains, without regard to the private ordering they engage in to divide the whole into many parts. In fact, if not law, they do form a functional whole, despite the present law that separates them into many independent legal entities. The normative basis for such a new approach is that, if the Wal-Marts of this world are not responsible for labor standards to workers to the very end of the supply chain, then no one is.
If enacting the Employee Free Choice Act and the various civil rights bills pending in Congress face tremendous challenges to be enacted, the question is whether legislation to reconceptualize workers’ rights in these subdivided enterprises has any chance at passage. In the recent era, the common law courts have also retreated from the advances made when what we call “employment law” was just beginning to blossom.
November 7, 2009 at 3:08 pm
Posted in: Civil Rights, Contract Law & Beyond, Employment Law
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The Employer’s Strategy in Gross v. FBL Financials
posted by Michael Zimmer
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).
For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.
The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.
The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.
For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.
November 4, 2009 at 10:43 am
Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized
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Flagrant Age Discrimination at Indiana University
posted by Gerard Magliocca
I am not in the habit of criticizing my employer, but here goes. Indiana University has a policy holding that the deans of individual schools on campus must retire at 65. In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly. This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.
I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA. Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.
October 28, 2009 at 6:30 pm
Posted in: Employment Law
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Employers Researching Applicants Online
posted by Daniel Solove
Over at the New York Times Bits Blog, Jenna Wortham writes:
According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.
The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)
According to the report, most employers did their research on applicants by using Facebook. I wonder whether they respected the applicants’ privacy settings. If the applicants limited the access of their profile to a select group of friends, and the employer accessed that profile, then the employer might find themselves at odds with the Computer Fraud and Abuse Act — with possible criminal penalties!
What leads to job rejections? Photos! Photos involving nudity, drink, and drugs are the most frequent job killers.
As I discuss in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, people must learn to be more careful about what they post about themselves and others or else they will face serious consequences and lost opportunities.
In an earlier post regarding college admissions officers researching applicants online, I argued that most lack guidelines for how they conduct such research and for how they use the information they find. These questions also pertain to employers:
* Should such information be used? When?
* How heavily should it be relied upon?
* What kinds of things should negatively impact an applicant? Information about sex life? Drug use? Drinking? Bad behavior?
* What steps should be taken to make sure that the information was accurate?
* Should a distinction be made between information that people post about themselves and information that others have posted about them, perhaps invading their privacy without their consent?
* What steps should be taken to make sure that the information used in fact relates to the applicant and not to somebody else with the same name?
* Should people be notified that information online was used against them and be given an opportunity to be heard to explain it?
August 20, 2009 at 6:37 pm
Posted in: Employment Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0
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Minding the Gap
posted by Chimene Keitner
While the U.S. Congress moves towards enacting the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act, which Tristin recently blogged about here, a U.K. think tank has released a report aimed at debunking the notion that discrimination accounts for gender disparities in pay. The Institute for Economic Affairs, whose mission is to find “ways of reducing the government’s role in our lives,” reports that differences in earnings can be accounted for most centrally by the fact that “[m]ales and females make different choices in the labor market, in terms of the trade-off between pay and other job characteristics, choice of education, choice of occupation and attitudes to work.” As stated in the Foreword, “the free choice of men and women who are seeking employment—as well as earlier educational choices and the choices they make regarding their domestic arrangements—are at the heart of differences in pay levels.” This account echoes the argument often deployed by employers facing claims of race discrimination, namely, that minorities simply aren’t interested in higher-paying, more secure jobs.
Why does this argument, which seems so easy to dismiss in the context of race discrimination, strike some as more plausible when it comes to women’s labor market “choices”? Enter Jill Lepore, who recently published an article in The New Yorker about the role of breast pumps in addressing the “Human Milk Gap.” Lepore reports:
One big reason so many women stop breast-feeding is that more than half of mothers of infants under six months old go to work. The 1993 Family and Medical Leave Act guarantees only twelve weeks of (unpaid) maternity leave and, in marked contrast to established practice in other industrial nations, neither the government nor the typical employer offers much more. To follow a doctor’s orders, a woman who returns to work twelve weeks after childbirth has to find a way to feed her baby her own milk for another nine months. The nation suffers, in short, from a Human Milk Gap.
There are three ways to bridge that gap: longer maternity leaves, on-site infant child care, and pumps. Much effort has been spent implementing option No. 3, the cheap way out.
Lepore asks, “is it the mother, or her milk, that matters more to the baby?” She suggests that pumps allow us to avoid addressing this important social question and its policy implications.
Juxtaposing these perspectives suggests that, in a variety of contexts, it can be useful to reflect on what we mean when we talk about women’s “choices,” and how we fail to recognize the ways in which many women’s choices are constrained.
January 18, 2009 at 9:01 pm
Posted in: Current Events, Employment Law, Feminism and Gender
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Science and Technology Workplace, A Predominately Male Face
posted by Danielle Citron
Recent studies suggest that fewer girls and women are pursuing, or staying in, careers in science and technology. Six years ago, 28 percent of the undergraduate degrees in computer science went to women. That number, however, dropped to 22 percent in 2005 and now reportedly sits at 10 percent. At the same time, women in the technical community are increasingly leaving their jobs. A recent study published by the Harvard Business Review found that while women made up 41% of newly qualified technical staff, more than half dropped out by the time they reached their late thirties.
Surely, a variety of reasons contribute to the male dominance of science and technology fields. Some blame our “cultural software”: young girls are not taught to enjoy computers. As the director of Northwestern University’s Center for Technology & Social Behavior Justine Cassell explains, “the girls game movement failed to dislodge the sense among both boys and girls that computers were ‘boys toys’ and that true girls didn’t play with computers.” Others suggest that women leave computer science careers to stay at home, in much the same way that women do in any other careers.
But the Harvard Business Review study offers a less benign explanation for women’s departure from careers in computer science, one that arguably accords with our Internet culture: the majority of women working in science and technology leave their jobs for alternative careers or the home to avoid struggling with sexual harassment, the macho “lab coat culture,” and the old boys’ network that excluded them. Nearly two-thirds of the women surveyed for the study said that they had been victims of sexual harassment in the workplace. A total of 43 percent of female engineers said that they had encountered an “inherently sexist culture” in which it was assumed that only men had the skills to succeed in the most advanced posts. Sylvia Ann Hewlett, an economist at the Center for Work-Life Policy and author of the study, explained that although the “predatory” and “condescending culture” towards women has declined in most workplaces in the past 20 years, it has “survived in the engineering, science, and technology context.” This seems consistent with what commentators call the “culture of misogyny” that pervades many social networking sites, blogs, and other Web 2.0 platforms.
December 16, 2008 at 6:07 pm
Posted in: Culture, Employment Law
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Wearing One’s Heart on One’s “Sleeve”
posted by Miriam Cherry
Recently I read this quick little “work manners” piece about tattoos in the workplace. I’ve read a few other things that seem to indicate that a number of employers are asking workers to cover up their tattoos – obviously a difficult or impossible task if the tattoos are on the worker’s face or hands. Seems inevitable that some of this will result in dismissals, and then the following litigation.
I suppose this fits into the literature developing about employers and evolving standards of dress and grooming in the workplace. Courts have tended to defer to employers on these standards, (even though some of the rationale of those cases is difficult to justify). Given that, and the at will rule, I have a feeling that many claims may end up being couched as discrimination in order to show a congnizable claim. In other words, someone will try to argue that this is discrimination against skin color – if it’s wrong to discriminate against someone who has a particular color of skin overall, isn’t it also wrong to discriminate against someone who has many different colors of skin, based on his/her tattoo?
November 19, 2008 at 3:28 pm
Posted in: Employment Law
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Respect for the Troops = Benefits Now
posted by Frank Pasquale
Bilmes & Stiglitz’s book The Three Trillion Dollar War explains in depth how aggressively the Administration has denied benefits to many returning veterans. It’s a natural consequence of going to war while cutting taxes–and given Jonathan Chait’s work, I’m not terribly surprised to see the Social Darwinist wing of the Administration trump the military on this issue. I’m happy to see that some are now starting to challenge these policies in court:
Berkeley-based Disability Rights Advocates filed a lawsuit that could affect thousands of veterans returning from Iraq and Afghanistan. They allege that the Department of Veterans Affairs is unable to provide timely mental health treatment for returning veterans.
Bipartisan resistance to courts’ evisceration of the ADA may also benefit a large number of veterans:
Advocates for people with disabilities say that recent court rulings have made the employment protections of the disability civil rights law almost meaningless, especially to people with diabetes, epilepsy, cancer, and mental illness. . . . Last year, a version of [the ADA Restoration Act] quickly got support from more than half of the House of Representatives. That forced the business community to negotiate. [Now the] bill’s backers hope to give President Bush something he can sign by the end of July.
As any viewer of Iraq: Alive Day Memories knows, many returning veterans will appreciate these developments.
June 18, 2008 at 6:46 pm
Posted in: Economic Analysis of Law, Employment Law, Law and Inequality, Politics
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Buying Silence
posted by Frank Pasquale
Can a company sign an airtight “nondisparagement” agreement with a departing employee? That’s one question raised by this fascinating post at Above the Law. It reprints an email by a departing associate who essentially accuses a firm of trying to hide the real reason for her being let go. At one point she states:
As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months’ pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don’t need much help from me in damaging your reputation.
This is not my area, but I find work in the general field of regulation of information flow fascinating. This news story by Adam Liptak suggests that while “settlements for silence” are generally enforceable, there are several reasons why a beneficiary of one may not seek to enforce it. Richard Epstein has argued for a “better coordination” of contract and free speech law here, and his proposal would largely eliminate public policy exceptions (and First Amendment defenses) to enforcement. Epstein argues that “where true information is obtained illegally– whether by trespass, fraud, or breach of confidence or contract–the presumption should shift sharply in the other direction, so that both damages and injunctive relief are made available to the party with the right to keep that information confidential.”
May 5, 2008 at 8:12 pm
Posted in: Contract Law & Beyond, Economic Analysis of Law, Employment Law
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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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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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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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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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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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