Jottings By An Employer's Lawyer

Friday, February 26, 2010

The Administrative Option - Deja Vu All Over Again and The MSM Catches Up

Steve Greenhouse, who has the labor beat (assuming that is still a proper term) for the NYT has an article today about the Obama's administration plans to utilize government contracting to increase wages and benefits for employees, Obama Aims to Use Federal Contracts as a Way to Lift Wages. The article focuses on the potential economic benefit to workers, but notes the concerns of the business and employer community.

If this seems like deja vu, it is. See Clinton to modify contractor 'blacklisting' rule, from the March 13, 2000 Buffalo Business First newspaper. By December 20, 2000, that story had evolved into a final rule that was published in the federal register. The regulations were suspended by the Bush Administration.

According to Greenhouse's article, the Obama administration proposal, still in the writing phase, would go further.

Much of the concern in the Clinton regulations by the business and employer community focused on this aspect. Each potential government contractor would have to provide the following information which would be taken into account in determining the acceptable bidder:
within the past three years, been convicted of any felonies (or has any felony indictment currently pending against them) arising from any Federal tax, labor and employment, environmental, antitrust, or consumer protection laws, had any adverse court judgments in civil cases against them arising from any Federal tax, labor and employment, environmental, antitrust, or consumer protection laws in which the United States brought the action, or been found by a Federal Administrative Law Judge, agency, board or commission to have violated any Federal tax, labor and employment, environmental, antitrust, or consumer protection law. If the respondent has answered ``has'' to the above question, please explain the nature of the violation and whether any fines, penalties, or damages were assessed.
From the employment law side, this raised the concern of just what impact adverse determinations, perhaps even agency finding by the EEOC, the NLRB or similar agencies would have on their ability to obtain government contracts.

No doubt that battle is about to resume in the very near future.

The "MSM Catches Up" in the title is just a little brag (as recognized by Greenhouse in his article) that an online publication, Tucker Carlson's Daily Caller was first out with the story on February 4th, White House considers pro-labor policy for government contractors, which I picked up in my post on February 9th. Gautham Nagesh, who used to cover government contracting at the Government Executive magazine, has followed up with additional stories:
Backdoor card check: GOP slams pro-union contracting policy, February 11; and
Documents confirm White House pushing pro-union contracting policies, February 23
and of course, because it's the way the blogosphere works, hat tip to my friends at Workplace Prof blog,   Federal Contractors and Wages and Benefits, which alerted me to Steve Greenhouse's article.

All snarkiness aside, this is is going to be a major story and there will be plenty to cover for both the MSM and those of us in whatever we are.

Last time around, the story didn't play out because of the election of 2000. This time, it's a long time until 2012.



I agree 2012 is a long way away. I sure hope that there will be a way to avoid this coming to fruition.
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Tuesday, February 23, 2010

Foreign Labor Unrest and the Future Here at Home

The M.P. Catherwood Library of the Cornell School of Industrial & Labor Relations has a service, Workplace Issues Today, that I receive daily. It's a good way to keep up with developments.

I was struck by the three entry's in today's email:
  • SPANISH WORKERS PROTEST RAISING RETIREMENT AGE,  a protest against a proposed raise in the retirement age and a proposal to reform labor laws; and
  • UNITE WORKERS VOTE TO STRIKE, reporting that over 80% of the members of the union which represents cabin crews at British Airways have voted to strike, although negotiations continue.
Although on global labor issues, I am no more than a casual observer, there seems to be no question that the labor movement in other countries is more entrenched than in the U.S.

Over the almost 35 years that I have been working in the field, the U.S. labor movement in terms of percentage of the private sector that is unionized, has been on a long downhill slide, reaching its lowest point ever this year. Although I am by no means suggesting one way or another a correlation, over the same period it seems to me that, with occasional almost abberational actions, labor's primary thrust has been political, not ground level organizing.

Anyone who thinks that they know what the future of politics in America is going to be this time next year, much less over the longer haul, is certainly more confident of their abilities than I would be. Still, you would have to think that among those in organized labor there is a re-thinking of their approach, since this time last year, it would seem that they had finally achieved a political breakthrough. A Democratic White House and Congress and one vote away from a filibuster proof Congress, and even that vote appeared shortly, when Senator Specter of Pennsylvania switched parties.

Now the filibuster proof Congress has gone with the loss of Ted Kennedy's seat and from a legislative standpoint, none of the goals have been achieved. It is the second time in my career that unions were narrowly turned away from a significant change in labor policy that would have provided substantial aid in organizing.

The third time may be the charm, although many will wonder if that takes another 30 plus years, whether organized labor will make it that long.

There of course is still a lot that can be accomplished both by the White House and by administrative action, particularly the NLRB, although even there, labor has been at least temporarily frustrated in getting appointments they have sought through the confirmation process.

If reports from the ground are any indication, labor organizing is picking up as political hopes have waned. That would seem to be a logical response. Combined with an uneasiness about the future, which obviously is not contained to the U.S., and looking at what appears to be a stone wall on the the legislative front, I would expect to see traditional labor law reflect more organizing, although perhaps a modernized version to deal with a changed workforce. It would be hard to argue that this might not be a fertile time.

Some of my colleagues who spend most of their time on traditional labor law are of the same mind and will be discussing the changing perspectives in a seminar next month in DC, It's Not Your Father's Union Campaign III .


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Thursday, February 18, 2010

What Does the Free Market Have to do With Compliance With Company Policies?

Kris Dunn, otherwise know as the hr capitalist, has a great blog of the same name.

You need to read this post, with its examples in its entirety: Employees Leaving Their Laptops Unsecure? Try These Public Humiliation Templates From Their PC...

Check it (and Kris's excellent blog) out.

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Friday, February 12, 2010

No Becker Recess Appointment, At Least Not This Recess

Or at least that would seem to be the most likely course of action based on a statement released by President Obama after the Senate confirmed 27 appointments by voice vote before leaving for the week long's President's Day Holiday. Senate Confirms 27 Obama Nominees . From the White House:
While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess. If they do not act, I reserve the right to use my recess appointment authority in the future.
Although I could have easily missed someone, it appears that the only labor and employment related appointment in the group confirmed was Cynthia L. Attwood, of Virginia, as a member of the Occupational Safety and Health Review Commission.

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Executive Order 11246, OFCCP and The Reach of Time

The next time you open a letter from your friendly Office of Federal Contract Compliance Programs investigator advising you that you will be subject to a friendly review of your compliance practices, you might just contemplate the following:

November 24, 1993

October 19, 1994

August 25, 2000

March 31, 2003

August 11, 2004

October 15-16, 2008

March 3-5, 2009

January 21, 2010

What are those dates? Well the first was the initial letter to what was then called NationsBank, now Bank of America, advising them that their Charlotte facility had been selected for compliance review by the OFCCP.

The January 21,2010 date is the decision of the Administrative Law Judge recommending that BOA be "found to have discriminated against African-American applicants in hiring for entry-level positions in 1993, and 2002-2005, on the basis of their race."

That's right, more than 16 years after the initial letter, a "Recommended Decision and Order" has been finally issued as to liability. The ALJ has kept jurisdiction to determine damages.

Still to come in addition to a determination of the damages is the appeal to the Administrative Review Board and then no doubt an appeal to a circuit court of appeal. And of course the possibility if the ALJ's determination is not completely correct the possibility of a remand to do it or some part of the process over.

For what happened on the interim dates listed above, feel free to review Judge Linda S. Chapman's 66 page order. ($)

Now this matter has had a number of unusual twists, turns and legal questions and challenges, but still ... 16 years plus? And 16 years plus to get not to an end, but to a recommended decision on liability alone? 

My purpose is not to point fingers at either the Bank or the OFCCP, as I don't know enough to suggest whether either (or both) did anything that unduly protracted the issue.  And I am sure that most OFCCP investigations/prosecutions don't take nearly this long.

Still it's not a healthy situation, for anyone, when cases take this long. And we ought to be looking for a better way.


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Tuesday, February 09, 2010

A New Term for Concern: The High Road Contracting Policy

Before taking too much joy in the initial defeat of Craig Becker's nomination to the NLRB, the business community, particularly government contractors, should be aware of a different approach that is beginning to be considered. That approach would use the power of the purse, government contracting, to achieve labor friendly policies. The story in the Daily Caller,White House considers pro-labor policy for government contractors points out that some Senators are already raising questions about the possible policy action.

For a more in depth look at the ideas behind the policy, check out The Road to Responsible Contracting a report prepared by the National Employment Law Project. The basic argument is that government should focus not just on lowest dollar, but on other requirements as well. Requirements like compliance with labor and employment laws, employers that pay health benefits etc.

Think Davis-Bacon on steroids.

The old saying that there is more than one way to skin a cat comes to mind. The concern of course is who ends up getting skinned.


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52- 33; Becker Loses

Reflecting the new political reality, the controversial nomination of Craig Becker for the NLRB failed this afternoon. Because of the procedural rules of the Senate, 60 votes were required to cut off debate and so the majority vote that would be sufficient for his confirmation was not enough. Given that the Republicans had 41 members and had shown no signs of breaking, there was not a lot of suspense. It did allow two Democrats to cross over, Blanche Lincoln of Arkansas and Ben Nelson of Nebraska to make votes that they probably feel will help them back in their home states. Senate Rejects Obama's Labor Board Nominee.

No news on what happens next. Majority Leader Reid could schedule more cloture votes, but absent a deal with a Republican (and now also Lincoln and Nelson) that would probably be the political shocker of the year, that does not seem likely to happen unless it's desired for political theater.

It is looking like the only way that Becker ever takes a seat on the Board, is through a recess appointment which would allow him to serve for 2 years.

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Friday, February 05, 2010

Becker Cloture Vote on Monday, Recess Appointment in the Wings?

It's not quite the Super Bowl of labor relations policy, but it is a surprising that Majority Leader Harry Reid has called for a cloture vote on Craig Becker's nomination to the NLRB on Monday. If the Republicans hold rank, and there has not been any indication that any Republican Senator is not inclined to do so, cloture will not be invoked. See Congressional Quarterly's story, Feb. 8 Vote Will Be First Test of Senate GOP’s New Number.

Being (thankfully)more than 1,500 miles from the Beltway, I have no clue as to the reason for the quick scheduling. There are some interesting things in play though. One is that the fate of another nomineee, Republican Bryan Hayes is probably tied to Becker's. And Hayes just happens to be the former aide to Republican Senator Mike Enzi. That was not enough to get Enzi's vote this time in Committee. (Enzi and fellow Republican Senator, Lisa Murkowski had both supported Becker in Committee the first time he was considered. The second time was a straight party line vote.)

As for as speculation goes, unless Majority Leader has a trump card somewhere up his sleeve, which seems doubtful, you have to assume that cloture will not be invoked. Failure to invoke cloture does not mean that the nomination is dead so that is not necessarily the end of the story.

One possibility is that the Democrats want to get a vote on record where they can argue that the Republicans are thwarting the ability to govern over a position that not a lot of the public knows very much about and will probably not think should be a very big deal, and then move on to other matters with that piece of political ammunition in their pocket.  Or Becker may be tired of being skewered and just want to get it over with and go back to his life as counsel for SEIU.

But the most likely is the one that Senator Reid mentioned, a recess appointment. See Reid Threatens to Bypass Senate With Recess Appointments, from The Huffington Post.  The Senate is scheduled to go into recess for President's Day later this month and an appointment made at that time would serve until late 2011.  

With the cloture vote sandwiched in between the Superbowl and UT's home basketball game with number 1 ranked Kansas Monday nite, there should be no shortfall of excitement for the 36 hours starting with the kick-off on Sunday.  And it probably won't be over then.


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Wednesday, February 03, 2010

Patricia Smith One Step Closer to Confirmation as Solicitor of Labor

Actually given the coming changing of the guard when Scott Brown is sworn in as the newest senator and the Republicans gain 41 votes in the Senate, yesterday's cloture vote on Smith was actually more like "a giant leap" as the votes for her confirmation later this week are assured. Dems Break GOP Filibuster Of Routine Nomination

It now seems that it will be Senator Brown before the cloture vote on NLRB nominee Craig Becker. Latest reports are that Brown will be sworn in tomorrow, the same day the Becker nomination is scheduled to go before the HELP Committee, where a Democratic majority should ensure a favorable vote. However, that just sets up a cloture vote. It will be interesting to see if the Democrats make Becker the first key cloture vote after the Republicans have 41 votes. Although Becker had two Republican votes in the Committee last session, it is unclear that they will be there this time around.

Obviously, action or inaction in the Senate (depending on your point of view) is going to be a key partisan theme in this year's Congressional election. Hard to imagine that a nominee to the NLRB would turn out to be Exhibit A in that debate, but that could very well be the case.

Update 2.4.10:  The Washington Post is reporting, that as expected, Patricia Smith was confirmed as the Solicitor of Labor today by a vote of 60-37. Although it came before Scott Brown was sworn in, his vote would not have been sufficient to defeat her confirmation.  She is the third highest official in the DOL and the top lawyer. 


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Monday, February 01, 2010

Anti-bullying Legislation for Schools, An Inevitable Tie

David Yamada, who blogs at Minding the Workplace, is a tireless crusader for anti-bullying legislation. He is the author of the model Healthy Workplace Bill and lately has been working in his home state to see if he can shepherd it through the Massachusetts' legislature. Last Wednesday there was a hearing on the bill.

In a follow up report, David posts today about a question  he received from a state legislator about the connections between bullying in schools and bullying in the workplace. You can see his comments at Workplace bullying and school bullying: Ties and parallels.

Although he has some interesting points about behaviors, he doesn't even mention the most significant connection in my mind. I have long been of the view that legislation against bullying in the schools is laying the foundation for the ultimate success of anti-bullying legislation in the workplace.

Although there are obvious differences between school and the workplace, and perhaps more importantly between students and employees, once it has become accepted that the appropriate tool for controlling bullying behavior is legislation, I am afraid it is only a matter of time before some state decides if it works for the schools, it will also work on the job. How far are we on the school front? According to Bully Police USA, 41 states already have legislation dealing with bullying in the schools.

As I have said repeatedly, it is not that I in any way condone bullying type behavior.  I don't. It is both wrong and bad business. However, it is my strong belief that litigation is too blunt an instrument to deal with behavior that all concede is measured on a continuum from that which is to be expected when humans are involved to that which should be found unacceptable.

Our legal system is good, but my experience in the workplace is that it will be asking far too much for it to try to deal efficiently with a cause of action for bullying, no matter how well crafted the legislation.


Agreed!..who doesn't know "bullying" is wrong? Any HR professional must stop it immediately. It can be done by policy and good judgment.
HR and good judgment together in a phrase is an oxymoron. HR has neither the power, skill or willingness to advocate for a policy that would curtail executive behaviors.
Gary, given your work challenging employers to stop workplace bullying, it doesn't seem like a good idea to alienate what would appear to be your target audience. As an HR professional who cares about our employees and out business environment, I rely on my good judgment and that of my peers to encourage positive interactions at work. I find it not offensive, just kinda dumb and poor marketing, that you would choose to be so dismissive and insulting of HR.

HR has NEVER been the department or group responsible for an employer willing to tackle workplace bullying. This is directly from our consulting practice. It's top down or not at all (in the US). Bullying is a leadership/executive responsibility, not an HR issue. Without laws compelling compliance, HR has little to no role. From the cause side of this issue, we have empirical as well as anecdotal data about HR's failure to act. Thus, the sweeping generalization seems to have a factual basis.
Hello, most recently, i experienced giving the intake notes over the phone, to an offsite, contracted HR firm representative. It took me one month exact to get a copy of the typed up intake notes.Finally received a copy after the investigation was over. Discovery: Do you know,the finished typed intake notes, was sanitized to the point, when the investigation was over, the employer was innocent of anywrong doing. I understand about supporting your client, right or wrong, for that paycheck you get,but how extreme is HR will to go? Everything "bubbles up".
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Medical Marijuana and Workers Comp: Odd Bedfellows at Best

Just yesterday I was having a discussion with someone about the increasing liberalization of attitudes toward marijuana use and a lot of the impetus, although certainly not all, seems tied to medical use. Over at Lynch Ryan's blog, Workers' Comp Insider, they have noticed too, and are quick to point out that it is going to make for some interesting workplace issues, One Toke Over the Line.

This story is a follow up to last week's post, The current buzz on medical marijuana and the workplace.

It also gives me a chance to try out one of blogger's new functions, posting at a scheduled time.


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A Sampler of Social Media Policies

That is an understatement. Doug Cornelius, Chief Compliance Officer at Beacon Capital Partners, has collected 144 of them, and it appears he adds new ones as he finds them. If you need a sample, check this out: Social Media Policies Database.

Hat tip to Tom Mighell, whose Internet Legal Research Weekly, is another great resource and a must week-end read for me. For information check out his blog, Inter Alia.

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