« December 2006 | Main | February 2007 »
FMLA comment period extended
January 29, 2007 by Ross Runkel at LawMemo
The deadline for comments on the FMLA has been extended to February 16 (it was February 2). [Federal Register Notice]
My previous entry on this:
Federal Register Notice: http://www.dol.gov/esa/whd/06-9489.pdf
Special DOL web site: http://www.dol.gov/esa/whd/fmlacomments.htm
The US Department of Labor has published a formal notice requesting comments on the Family and Medical Leave Act (FMLA). Instead of publishing proposed new rules for comment, DOL is first seeking comments on 12 substantive areas:
- (1) Eligible Employee
- (2) Definition of "Serious Health Condition"
- (3) Definition of a "Day"
- (4) Substitution of Paid Leave
- (5) Attendance Policies
- (6) Different Types of FMLA Leave
- (7) Light Duty
- (8) Essential Functions
- (9) Waiver of Rights
- (10) Communication Between Employers and Their Employees
- (11) FMLA Leave Determinations / Medical Certifications
- (12) Employee Turnover and Retention.
|
|
Attorney Labor Unions
January 27, 2007 by Ross Runkel at LawMemo
When lawyers decide to unionize, are they excluded from the process because they are confidential employees, supervisors, or managers - or simply by the ethical standards of the legal profession?
Attorney Labor Unions provides analysis and answers. Written by Mitchell H. Rubinstein, Senior Counsel, New York State United Teachers, 52 Broadway, 9th floor, New York, NY 10004, phone 212-533-6300, email mrubinst@nysutmail.org. The article is published in the January 2007 issue of the New York State Bar Association Journal .
Here's the abstract:
Attorneys may be interested in joining a labor union for the same reasons as other employees. Although there is relatively little precedent or history in the area of attorney unions, the federal National Labor Relations Board (NLRB or “Board”) has asserted jurisdiction over law firms since 1977, provided a firm has $250,000 in gross revenue. The general process of establishing a union would be the same as it is for employees in other fields.
There are instances where such unionization has occurred without contest. Many reported cases involving law firms actually concern support staff, although there are those that also involve attorneys.
What if there is a contest? As a general proposition, attorneys enjoy the same legal rights as other employees in deciding whether or not they want to be represented by a union. The employer’s or law firm’s desires are irrelevant. However, attorney-employers are likely to raise certain points in opposition to attorney unionism. They may argue that staff attorneys are not eligible to unionize because they are either confidential employees, or supervisors, or managerial employees. They might also claim that attorneys should not organize because the ethics of the legal profession will impede the collective bargaining process. Each of these is discussed in turn.
|
|
A call to end pre-dispute arbitration agreements
January 27, 2007 by Ross Runkel at LawMemo
Number One on the SSRN list of Employment Law downloads for last week was an essay by Symeon Symeonides, Dean at Willamette University College of Law in Salem, Oregon. The hefty title: Party Autonomy and Private-Law Making in Private International Law: The Lex Mercatoria that Isn't.
Of great interest to employment lawyers is this essay's suggestion that pre-dispute arbitration agreements - as they relate to employment contracts in which presumptively one party is in a weak bargaining position - should be made non-enforceable.
Although written by a conflicts of laws expert, this article has a lot to say about arbitrators using rules put out by private organizations as opposed to "legal" rules adopted courts or legislatures.
The abstract:
This essay discusses “non-state norms” from the perspective of American conflicts law. Commonly referred to as the “new lex mercatoria,” these norms are drafted by various international or intra-national non-governmental organizations and are proposed for incorporation by contracting parties or for application by arbitrators, with or without the parties' prior consent.
Understandably, these norms are popular among many arbitrators who tend to place them on the same footing as law. Current U.S. arbitration law uncritically permits this treatment to the extent it does not allow judicial review of an arbitrator's choice of law (or non-law). The fact that, unlike the law of most countries, American law generally enforces pre-dispute arbitration clauses in consumer contracts and most employment contracts can further exacerbate the situation. In contrast, in contracts that are not subject to arbitration, American courts apply non-state norms only to the extent they have been expressly incorporated into the contract and only if their application would not displace non-waivable rules of the law that would otherwise govern the contract.
This essay applauds the latter position of American conflicts law but suggests that U.S. arbitration law should be reformed so as to provide needed protection to consumers, employees, and other presumptively weak parties.
|
|
EEOC v. Sidley Austin production motion
January 25, 2007 by Ross Runkel at LawMemo
EEOC sued the Sidley Austin law firm back in 2005 claiming that the firm demoted a bunch of partners (which EEOC says are "employees") because of their age.
In the latest development, EEOC filed a motion to compel production of all complaints by clients against the demoted partners and all other partners during a four year period. [Motion to Compel Production]
Why?
It seems the law firm is claiming it demoted the partners because of complaints from clients. EEOC wants to see those complaints. EEOC also wants to see complaints against all other partners so there can be a match-up comparison to see whether the demoted partners were treated less favorably than others.
My view:
- Wall Street Journal Law Blog quotes a defense lawyer (not associated with the case) as saying EEOC did this to "harass" the law firm. Perhaps. However, it is normal litigation strategy for a plaintiff to want to see the evidence that supports the defense claim. It's also normal in a discrimination case to compare the facts relating to the plaintiffs to the facts relating to other similarly situated individuals. It's normal, common, and might be malpractice not to do it.
- What I do not understand is why the federal taxpayers are footing the bill for this litigation by the EEOC. The alleged discriminatees (demoted law firm partners) surely are not without funds to bring their own law suit. Compared to the average American's income, these folks have been pulling down huge amounts of income for decades. I say let them fund their own litigation. Let the EEOC focus on helping out the folks who really need help.
|
|
$2.8 million settlement
January 25, 2007 by Ross Runkel at LawMemo
78 Latino employees sued Quietflex Manufacturing Company claiming discrimination against them based on their national origin in its transfer and compensation policies.
The employees were represented by the Mexican American Legal Defense And Educational Fund, Inc. (MALDEF). The EEOC intervened in the suit.
In a settlement announced January 23, the company's insurer will pay out $2.8 million and the company will "implement policies and practices to advance equal employment opportunity."
|
|
Forgotten Workers: Unprotected Volunteers
January 24, 2007 by Ross Runkel at LawMemo
What's an "employee"? What's a "volunteer"? If a volunteer is sexually harassed, is there a Title VII claim?
Find out in Our Nation’s Forgotten Workers: The Unprotected Volunteers by Mitchell H. Rubinstein, Senior Counsel, New York State United Teachers, 52 Broadway, 9th floor, New York, NY 10004, phone 212-533-6300, email mrubinst@nysutmail.org. The article is published in the University of Pennsylvania Journal of Labor and Employment Law.
Here's the abstract:
Public policy strongly supports voluntarism as it fuels interests that are critically important to society and the health of this country, particularly in these days of ever-increasing budget cuts. It has also created many unique legal dilemmas. Unfortunately, however, the volunteer experience for the individual may not always work out. This article addresses the consequences of a failed voluntary service relationship. For instance, can a volunteer who is sexually harassed maintain a cause of action for sex discrimination under Title VII? Is a volunteer an employee with other rights? What is the definition of an employee anyway?
There is still great variation in this country with respect to which employment test should be utilized to determine whether or not someone is an independent contractor or an employee. Additionally, courts have reached conflicting decisions with respect to whether other workers, such as graduate students, are employees. Therefore, it should not be surprising that there is also great variation in the case law distinguishing between volunteers and employees.
As discussed in this article, a two-step analysis should be utilized to distinguish between volunteers and employees. In general, to be an employee, the individual must (1) be hired which involves an examination of whether the individual receives some form of remuneration, and (2) have his or her work controlled by the employer.
Though there is virtually no scholarly work that analyzes the rights of volunteers in employment, the question of whether volunteers should be treated as employees is becoming an increasingly important legal issue as there are a number of recent decisions addressing this issue. See, e.g., Hallissey v. America Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. Lexis 12964 (S.D.N.Y. Mar. 10, 2006) (refusing to grant summary judgment because “community leaders” who serviced internet message boards and chat rooms in return for free internet access, a compact disc case, expanded web space, anti-virus software, and employee discounts could be employees under the FLSA); Lowery v. Klemm, 845 N.E.2d 1124 (Mass. 2006) (denying a state claim for sexual harassment as the plaintiff was a volunteer and not an employee).
|
|
Supreme Court will decide ERISA fiduciary case.
January 21, 2007 by Ross Runkel at LawMemo
Do ERISA fiduciary duties apply when a plan administrator decides to terminate a plan? Are there fiduciary duties as to the implementation of the termination?
The US Supreme Court announced January 19 that it will take up Beck v. PACE International Union, and a decision is expected by the end of June. [Details]
When Crown Vantage Inc went into bankruptcy its board of directors served as the administrator of Crown's 18 defined benefit pension plans. The board began considering terminating the plans by purchasing annuities. PACE, representing employees covered by 17 plans, recommended as an alternative that the plans be merged with a pre-existing multi-employer plan.
The board went forward with its termination decision by purchasing annuities for 12 plans.
PACE brought adversary proceedings in bankruptcy court claiming that Crown's board breached its fiduciary duties under the Employee Retirement Income Security Act (ERISA) by failing to give adequate consideration to the merger proposal.
The bankruptcy court agreed.
Beck, the trustee in bankruptcy, appealed to the district court which affirmed.
The 9th Circuit affirmed, holding that
- The decision to terminate the plan was a business decision not subject to ERISA fiduciary obligations
- The implementation of the decision was discretionary in nature and subject to ERISA fiduciary obligations
- Crown's board breached its fiduciary duty by failing to adequately investigate the proposed merger
The US Supreme Court granted certiorari on January 19 to review the 9th Circuit judgment.
The formal question presented to the Supreme Court:
"Whether a pension plan sponsor’s decision to terminate a plan by purchasing an annuity, rather than to merge the pension plan with another, is a plan sponsor decision not subject to ERISA’s fiduciary obligations."
|
|
Ash v. Tyson tries a comeback
January 18, 2007 by Ross Runkel at LawMemo
Less than a year after the US Supreme Court remanded Ash v. Tyson Foods to the 11th Circuit, the case is trying to make a comeback. [Details]
Plaintiffs have filed a petition for certiorari, and the case is on the Court's conference calendar for January 19.
And the petitioners' Reply Brief points to extensive plagiarism (my word) in which the 11th Circuit copied from the defendant's brief, and "reproduces even the typographical and grammatical errors." An Appendix to the Reply Brief sets out a detailed comparison of the brief and the opinion.
A manager called an African-American supervisor "boy," and the 11th Circuit said that could not be evidence of racial animus because the comment was not "black boy." The Supreme Court told the 11th Circuit to be a bit more realistic about the context of the word "boy" rather than categorically excluding it as evidence of pretext in a Title VII case. The 11th Circuit took another look and decided that "boy" in context could not have had any racial significance.
As evidence of pretext in a Title VII case two black employees had evidence that their qualifications were better than the qualifications of the folks that actually got the promotions they sought. The 11th Circuit said this evidence could not be used unless "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." The Supreme Court thought that was "unhelpful and imprecise" and sent the case back for some true legal reasoning. The 11th Circuit then applied the rule that "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question."
My view:
The qualifications issue badly needs Supreme Court review. Courts that follow some form of the "slap in the face" test (even when dressed up in fancy legal lingo) have got it backwards. It's for the jury to make any inferences about evidence unless no reasonable juror could make the inference. The 11th Circuit's test selects one type of pretext evidence for special treatment, and that evidence never gets to a jury.
The "boy" question is a serious one. However, I think the 11th Circuit is probably right in saying that the plaintiffs did not produce the right kind of evidence to show that the word was being used in its nasty and insulting sense.
Original 11th Circuit decision.
Supreme Court decision.
Second 11th Circuit decision.
Petition for certiorari.
Petitioners' Reply Brief (containing Appendix)
|
|
ERISA preempts Maryland Health Act
January 17, 2007 by Ross Runkel at LawMemo
Maryland's Fair Share Health Care Fund Act requires certain employers to spend at least 8 percent of payroll on employee health insurance or pay the shortfall to the state. These health care expenditures can be ERISA-qualified plans, on-site medical clinics, or contributions to Health Savings Accounts.
The 4th Circuit held (2-1) that the Employee Retirement Income Security Act (ERISA) preempts the Maryland Act. Retail Industry Leaders Assoc v. Fielder (4th Cir 01/17/2007)
The court said, "Because [the Act] effectively requires employers in Maryland covered by the Act to restructure their employee health insurance plans, it conflicts with ERISA's goal of permitting uniform nationwide administration of these plans." The state argued that the Act imposes a payroll tax and then offers a credit for qualified spending to help pay for the state's medical assistance program, but the court said this was "a stretch." The court found preemption because the Act has an impermissible "connection with" an ERISA plan.
The court reasoned that "the only rational choice" for employers would be to restructure their ERISA plans, and that this was exactly the intent of the state legislature.
The court rejected the state's argument that the Act provides two options that would not affect ERISA plans: on-premises medical clinics and Health Savings Accounts. The court said the clinics "would not be a serious means," and said Health Savings Accounts are available in only limited circumstances. In addition, both would still have an impermissible "connection with" ERISA plans because employers would need to coordinate their spending with existing ERISA plans.
The DISSENT argued that the Act provides a means of compliance that does not impact ERISA plans - paying an assessment into a state fund.
[Plaintiff Retail Industry Leaders Association is an association of which Wal-Mart is a member. Wal-Mart is the only employer that is both covered by the Act and not already in compliance.]
My view: The case is wrong. The dissent is right. Whether or not the statute is a good idea, Wal-Mart does not have to fuss with any of its ERISA plans in order to comply. This case is an example of a court looking for a reason to strike down a statute it does not like by speculating as to what sort of employer choices are "rational" and by declaring that on-premises clinics would not be a "serious" choice. The Act gives Wal-Mart three non-ERISA ways to comply. The 4th Circuit makes it sound like Wal-Mart had only one way out.
|
|
NLRB takes on email issues
January 13, 2007 by Ross Runkel at LawMemo
Can a company prevent employees from using email to talk about union matters? Is use of company email a mandatory subject of collective bargaining?
These issues and more come before the NLRB in a rarely-seen oral argument on March 27, 2007.
The case: The Guard Publishing Co (Case 36-CA-8743-1) | Notice | Briefs and other documents
And the NLRB is soliciting amicus briefs (due February 9) on the following questions:
- Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non-job-related e-mails but not those related to union or other concerted, protected matters?
- Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
- If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
- In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
- Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
- How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
- Are there any technological issues concerning e-mail or other computer-based communication systems that the Board should consider in answering the foregoing questions?
|
|
Union dues and the 1st amendment
January 10, 2007 by Ross Runkel at LawMemo
A union defeat is in the air at the US Supreme Court in Davenport v. Washington Education Association.
A public sector union collects money from nonmembers, as required by a collective bargaining agreement backed up by a state statute.
The state statute says the union can spend the money for political purposes only if the nonmember first "affirmatively authorizes" it.
The union wants to spend the money first, subject to a possible refund later on.
The Supreme Court of the State of Washington ruled in favor of the union, saying the statute requiring nonmembers to "opt in" was a violation of free speech.
I have previously said I thought the sate court was wrong. Davenport v. Washington Education Association - Review granted.
Paul Secunda at Workplace Prof Blog has collected some extracts from today's oral argument at the Supreme Court: Analysis of Oral Transcript in Davenport Supreme Court Union Fees Case. He concludes that there are no more than two Justices who might vote in favor of the union.
|
|
Norfolk Southern v. Sorrell
January 10, 2007 by Ross Runkel at LawMemo
In a FELA case the employer's negligence and the employee's contributory negligence are judged by the same causation standard. The Supreme Court said so today.
Norfolk Southern Railway Co. v. Sorrell (US Supreme Court 01/10/2007)
And what is that standard? The Court refused to say.
In an otherwise boring case, the Court spent three pages explaining that Norfolk Railway tried to "smuggle" in a new issue that was not covered by the grant of certiorari.
Norfolk petitioned the Court to decide whether the same standard of negligence must apply to both plaintiffs and defendants. Once at the Court, Norfolk pushed for a decision on what that standard should be.
Unimpressed, the Court said "Norfolk is not only enlarging the question presented, but taking a position on that enlarged question that is contrary to the position it litigated below." Ouch. Don't do that.
The certiorari petition presented a more limited question, and that is the question the Court decided. No more.
Four Justices wrote two concurring opinions expressing the view that the standard is well settled by previous decisions.
My view: Correct decision. As I said elsewhere, "I can't see why any of the Justices would disagree" that the standards are the same. Norfolk Southern Railway Co. v. Sorrell - preview and prediction.
|
|
Supreme Court takes on FLSA case
January 06, 2007 by Ross Runkel at LawMemo
Must a court defer to Department of Labor regulations interpreting the Fair Labor Standards Act (FLSA) as excluding domestic employees employed by a home care agency?
This is the second time the Supreme Court has taken a look at this case.
The case: Long Island Care at Home Ltd v. Coke [Details, decisions, etc.] Certiorari granted January 5, 2007.
Coke sued her employer under the Fair Labor Standards Act (FLSA) claiming entitlement to minimum wage and overtime. The trial court granted the employer's motion for judgment on the pleadings. The 2nd Circuit reversed in part; the US Supreme Court remanded for reconsideration in light of Department of Labor's December 2005 Wage and Hour Advisory Memorandum; the 2nd Circuit adhered to its original decision. The US Supreme Court granted certiorari to review the 10th Circuit decision.
FLSA Section 213(a)(15) exempts employees engaged in "babysitting services" and "companionship services." The exemption applies to "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]) ...." Department of Labor (DOL) regulation 29 CFR Section 552.109(a) applies the exemption to "[e]mployees who are engaged in providing companionship services, as defined in Section 552.6, and who are employed by an employer or agency other than the family or household using their services."
The 2nd Circuit held that this regulation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is an interpretive rather than a legislative regulation. The 2nd Circuit also held that this regulation is not entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because it was inconsistent with Congress' purpose and with other regulations and with previous DOL positions, and insufficiently explained by DOL.
The formal Questions Presented in the Supreme Court are:
1. Whether the Second Circuit erred in refusing to give deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to a thirty-year-old Department of Labor regulation - a regulation that has twice been upheld by the Tenth Circuit - on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed “Interpretations.”
2. Whether, in holding that a longstanding Department of Labor regulation was not persuasive and thus undeserving of any deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Second Circuit erred by failing to address the governing provisions of the Fair Labor Standards Act and by declining to give any weight to the Department’s interpretation of its own regulations.
|
|
Supreme Court takes up "cat's paw" case
January 06, 2007 by Ross Runkel at LawMemo
It's called "cat's paw." A human resources manager decides to fire an employee she doesn't know, based mainly on information from a supervisor. The supervisor has a history of racism. So the question is whether the employer is insulated from liability because the manager didn't know the employee was black.
The case: BCI Coca-Cola Bottling Co v. EEOC, certiorari granted January 5, 2007. [Details, case below, etc.]
EEOC claimed that BCI discharged Stephen Peters in violation of Title VII. The trial court granted summary judgment for BCI; the 10th Circuit reversed. The US Supreme Court granted certiorari to review the 10th Circuit decision.
BCI discharged Peters, who is black, for insubordination. EEOC claimed that BCI discriminated on the basis of race because similarly situated white and Hispanic employees were treated less harshly. The discharge decision was made by a human resources manager based on information provided by Peters' immediate supervisor plus a review of Peters' personnel record. The HR manager did not know Peters was black. The supervisor not only knew Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.
The formal Question Presented in the Supreme Court is:
"Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee."
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
