Jottings By An Employer's Lawyer

Thursday, August 23, 2007

Blogging for Good, and Now Evil

This post from Working Life, Jonathan Tasini's website, Unions and Bloggers Unite to Organize might lead some potential union targets to think that -- blogging for evil -- is just what is happening. The post written by Natasha Winegar, Jonathan's assistant is a quick update on a new, joint effort between the Teamsters and activist bloggers to organize workers, in this case workers at First Student, a transportation company in the education sector.

Quoting from another blogger, Shockwave, Winegar offers this insight into the bigger idea behind this one campaign:
In the next few years about 2000 consultants and lawyers with $billions from 10,000 corporations who are doing everything they can to prevent 100,000,000 American workers from exercising their right to form a union will have to deal with 10,000 union organizers, 300,000 progressive political bloggers and 15,000,000 union members. I bet on us.

We have complementary strengths. Unions have boots on the ground, bloggers have keyboards on the Web (the most powerful and democratic form of communication and organization.) Unions have deep knowledge of union-busting and union organizing tactics, bloggers can help craft Internet based strategies that are effective and cannot be duplicated by the union busting forces.

Disseminating information, winning the war of ideas, digesting mountains of data, facilitating communications between all pro-worker stakeholders, educating union rank and file and workers on how to use the Internet to organize under the radar of union busters. We can do all this.
I am not quite sure where the numbers in the first paragraph come from, but there is no doubting the missionary zeal with which they are spoken.

Winegar adds her own thoughts:
The past few decades have seen labor laws weakened, an increase in union-busting tactics, and the proliferation of vast multi-national corporations, and now many unions are looking for new, creative ways to organize. A partnership between unions and the netroots is a very powerful organizing tool that can help unions deal with these challenges.
How successful this partnership will be in changing the decline in union membership remains to be seen. However, there is little debate that the internet and the communities it spawns have and will continue to make a significant cultural impact. Anyone dismissing out of hand the idea that they could be a force in union organizing, should probably think again.

Although it seems highly ironic to do so, I will tag this post "traditional", my nomenclature for that area of employment law which deals with unions and their relationships with employers.


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Friday, August 17, 2007

Is the Blue Eagle Set to Fly? Minority Bargaining for Unions

Sometime ago I reported on Charlie Morris', formerly of Dedman SMU Law School, book attempting to resurrect a practice he argued had been common at one time in American labor law. I first mentioned Morris proposal in a comment about his book, The Blue Eagle at Work, more than two years ago here. Earlier this spring, in the context of a broader view of potential developments in labor and employment law (here) I noted Professor Rick Bales of the Workplace Prof blog's post that Morris was soliciting support for his view from other labor law professors.

A simplified view of the practice Morris is advocating, minority bargaining, would work this way. If there were a bargaining unit of 100 and twenty-five joined a union and then requested that the employer bargain with them, the employer would have to. Any resulting agreement would cover only those 25 employees.

Obviously that would be a major change from the status quo where it is all or nothing. Currently using the 100 employee bargaining unit, if 51 want to be represented by the union, the employer must bargain and any agreement covers all 100 employees. On the other hand, if 49 employees want to be represented by a union, the employer has no obligation to bargain with the union.

Professor Emeritus Morris' first attempt to move beyond theory was to support an unfair labor practice charge when an employer refused to engage in such minority bargaining. That effort ran aground when the NLRB General Counsel refused to issue an unfair labor practice charge, thus ending the matter.

Undeterred, seven unions led by the Steelworkers have now petitioned the NLRB for rule-making procedures that would authorize such bargaining. In support of that effort, 25 labor law professors have indicated their support. Professor Morris is the contact person for that group. He did not get any of his fellow Texas professors to sign in support. (Actually Professor Morris now lives in San Diego.) He did get George Schatzski, formerly at University of Texas and now at Arizona State University school of law.

None of the three professors who blog at the Workplace Prof blog are on the list either, nor is the other blogging professor, Ross Runkel. (Just because they are not on the list of course does not mean that they do not agree with the position.) However, they and others are blogging about it.

For some other views and links to the documents that have been filed with the Board see:

Minority bargaining required? Professor Ross Runkel

Minority Unions Professor Jeff Hirsch

Minority Unions, Part Two - Professor Rick Bales

Other non-professors are interested as well, from what may have been the first story to break the latest developments by Steven Greenhouse in Wednesday's New York Times, Seven Unions Ask Labor Board to Order Employers to Bargain to the blog of the National Association of Manufacturers, ShopFloor, Minority Bargaining: Unions Make the Big Play and an earlier post.

The folks at Kilpatrick, Stockton who started a blog (EFCA Updates) during the Congressional fight over the Employee Free Choice Act have been following the story in depth, complete with the first links to the petition, the professor's letter and other background documents, here and here.

The general consensus, which I share, is that this is a non-starter with the current NLRB, but is another agenda item if the political winds in Washington should shift. That agenda is beginning to grow, so much so that it probably merits its own category, the 2009 agenda.

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Wednesday, August 15, 2007

An EEOC Charge and the Local Congressman

Although not making new law, the 5th Circuit's holding this week that a trial judge had not abused his discretion in keeping out an EEOC determination, did give some insight into how political power sometimes comes into play in EEOC investigations. It also added an additional argument for keeping them out that would be applicable in all cases.

About the political issue the Court said:

The EEOC letter was created under questionable conditions—the EEOC investigators initially determined that NEISD had not discriminated against Guerra but later, following complaints by Guerra to a member of Congress, reopened the file and reversed their decision without any new evidence. The district judge did not allow NEISD to subpoena the EEOC investigators to explain this matter.

Not exactly designed to assure employers about the decision making process. Guerra v. North East Independent School District (5th Cir. 8/14/07) [pdf].

For the more general comment applicable in every case, the Court said a second reason for upholding the trial court's discretionary decision to keep the determination out was that "the EEOC evidence spoke directly to the ultimate issue in the case. It would likely have prejudiced the jury since the EEOC made its own factual determination that age discrimination occurred."

Reminds me of the objection that doesn't seem to be used quite as much any more, maybe because there are relatively few trials, that an answer "would be invading the province of the jury."


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Saturday, August 11, 2007

A "Sick" Business Model

Here's the latest - printing your own Doctored notes , according to a story in the Chicago Sun Times last month. Some of the links included in the article:

  • Fake Doctor's Excuse, $9.95, which has the following Disclaimer: This Novelty Fake Doctor's Excuse is designed for printing and framing and although it may look real it is not a substitute for a real Dr. Excuse and should only be used for entertainment purposes.

  • Create Your Doctor's Excuse Note Now, $9.99, with no disclaimer.

  • Excuses, Excuses, no disclaimer per se, but the following warning: This is for entertainment purposes only. This site is not maintained by a real doctor or physician of any kind. Use at your own risk and discrestion [sic]. Not responsible for any lost wages or job. I was visitor number 14,019 according to the counter on the site.

  • Excused Absences, $24.95 for five templates, including jury duty and a funeral, when you need variety I suppose.

And I thought the worse thing an employer had to worry about was a doctor being overly generous to their patient in passing out no work slips.


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Wednesday, August 08, 2007

The Immigration Issue: Lighting the Fire

Shortly, perhaps this week according to the story in today's NYT, the Department of Homeland Security is set to issue final rules which would require employers to fire workers who use false social security numbers. U.S. Set for a Crackdown on Illegal Hiring.

The final regulations, first proposed in draft form last summer, had been delayed awaiting potential Congressional action on an overall solution to the immigration issue which of course did not happen.

Among the likely results of the final regulations between now and the end of the year —
  • the Social Security office will be swamped with calls for clarification by employers;
  • large numbers of individuals will lose their jobs;
  • an increase in charges and litigation related to national origin discrimination; and
  • more business owners prosecuted for hiring illegal aliens;

Among the possible results following the implementation of the regulation

  • increased pressure on Congress to act on immigration;
  • increased unemployment (official or otherwise);
  • lower productivity for the nation's workforce as a whole; and an
  • increased strain in relationships between the immigrant community and those supporting a hardline position on immigration

It may well be that some sort of catalyst is needed to provide the necessary foundation for a solution to this complex problem. It is possible these regulations will be that catalyst.

On the other hand, my apprehensions about the law of unintended consequences are quite high.

Update (8/10/07): Here is a link to the final "no match" regulations and also a brief summary prepared by my firm.

Additonally, the Department of Homeland Security indicated its intent to increase civil penalties as much as 25%. See the Fact Sheet: Improving Border Security and Immigration Within Existing Law, for more information on other steps announced by the Department today.

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Tuesday, August 07, 2007

As Big 3 Bargaining Begins - Good News for the Bargainers

With bargaining between UAW and the 3 major American car manufacturers just under way and focusing on the cost of health care (see Kaiser Daily Health Policy Report) at least one potential problem was lifted from their backs as the 6th Circuit today approved a settlement agreement between the UAW, GM and Ford changing the agreement on retiree medical benefits. UAW v. General Motors (6th Cir. 8/7/07).

After recounting the history of bargaining over the years that led to the current crises, Judge Sutton summarized the pre-settlement situation as follows:

These benefits are not inexpensive. Accounting for active and retired workers and their families, GM provides healthcare to 1,100,000 people, making it the “single largest private purchaser of health care in the United States,” with yearly expenditures of $5.4 billion in 2005 and with the lion’s share (nearly $3.7 billion in 2005) going to retiree benefits. GM JA 614. Ford tells a similar story. It spent $3.5 billion to cover 590,000 people in 2005, with $2.4 billion going to retiree benefits. In 2005, these aggregate healthcare expenditures added $1,525 on average to the cost of every GM vehicle and $1,100 to the cost of every Ford vehicle. But for the legacy expenses—the retiree benefits—the healthcare costs per vehicle at GM and Ford would be $480 and $346, respectively. Their Japanese rivals spend an average of $450 per vehicle for all healthcare costs, in other words for the healthcare benefits of active workers and retirees.

In a decision that includes a discussion of the costs of the health care system, the condition of the the auto industry, the conduct of parties in negotiating and is a paean to attorney Billy Payne, who along with the Pittsburgh firm of Stember, Feinstein represented the class members, Judge Sutton affirms the trial court's approval of the settlement which was negotiated by UAW and the auto companies and presented to the class of retirees on a "take it or leave it" basis.

The Court did postpone for another day one portion of the settlement agreement that was not challenged by the 1/2 of 1% of the class members who had objected. The Court deferred what it called an unprecedented attempt to "freeze in time the 'case law' that will govern any future dispute over the vesting of the retirees’ healthcare benefits." Instead, the Court decided to "wait for another day, a day that may never come, to decide how or whether a party may enforce this provision."

For an industry that could use a few good breaks, this seems to be a good, although probably not unexpected, one.


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Thursday, August 02, 2007

The Legislative Front -- Employers Better Brace Themselves

Two developments, the passage by the House of Representatives of the Lily Ledbetter Fair Pay Act of 2007 and the announcement that Senator Kennedy has filed the Equal Remedies Act are just more indications that the battle ground for employers is about to shift to the legislative front.

Except for the whistleblower provisions of Sarbanes Oxley, you have to go back almost fifteen years (the passage of the FMLA in 1993) for any significant federal employment legislation.

The Lily Ledbetter Act is a Congressional reaction to the Supreme Court's interpretation of Title VII's statute of limitations in Ledbetter v. Goodyear Tire & Rubber Co., although the potential change seems to go much broader than just reversing that one decision.

Two Republican members of the House Committee on Education and Labor, which would have been the appropriate committee to have reviewed the bill, if the House could have been bothered to have hearings, took this view:
“By gutting the long-standing statute of limitations, an employee could bring a claim against an employer decades after the alleged initial act of discrimination occurred,” noted Rep. Buck McKeon (R - CA). “That means the employee could have received wages and benefits for dozens of years, while the employer’s senior leadership could have changed numerous times during that same time period.”

“This loophole would allow a retiree to seek damages against a company now led by executives who had nothing to do with the initial act of alleged discrimination,” said Rep. John Kline (R-MN), Ranking Republican on the House Health, Employment, Labor, and Pensions Subcommittee. “The person who allegedly committed that act could have passed away – and in fact, his or her children could have passed away as well. But, under this Democrat bill, the potential for abuse and ambiguity would live on and on. Trial lawyers, you can be sure, are salivating at this very prospect.”
As I said earlier, any legal theory which requires a court's application of the equitable doctrine of laches to hold it within bounds, as Justice Ginsburg's Ledbetter dissent calling for this legislative action did, is completely out of touch with the reality of every day litigation. See Payday Blues at the Supreme Court.

Although not yet announced on his website or available from the Senate's website, the Daily Labor Report is saying that Senator Kennedy has introduced the Equal Remedies Act of 2007. The intent is to remove the caps in Title VII which limits compensatory and punitive damages under that statute based on an employer's size. For an employer of more than 500, the cap is $300,000. That is in addition to back pay and other out of pocket damages, reinstatement and other equitable remedies and attorneys fees.

The stated reason -- to ensure equality for gender, disability and religious discrimination claims with those available to individuals who bring claims for race or national origin discrimination. Those claims can be brought under § 1981 which has no caps. (It also has a much longer statute of limitations and no requirement to file with the EEOC, so following the logic of this legislation, perhaps we could save some taxpayer money and abolish the EEOC.)

My only surprise is that it has taken this long to surface. Just from a political perspective it's a hard sell to argue that race and national origin claims are worth more than others.

The most appropriate action would be to place caps on §1981 claims to match those in Title VII. But that of course would violate the unwritten, but seemingly cast in stone, rule that no matter whether it is rational or not, no employee legislation is ever to be altered that could in any way be construed as adverse to a potential plaintiff. Congress can only give more; it cannot take away.

As important as it is, employment legislation and the impact the litigation that ensues from it has on employers is not very well understood by most members of Congress. If not now, perhaps in a new administration employers are going to have to make hard political choices whether to oppose totally or begin to negotiate to lessen the damage of coming legislation.

It is not too late, but certainly not too early, for employers to begin thinking about how their world may well be changing.


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