U.S. v. European Labor Model - Time to Reconsider?

I think it will take a lot more than one article from the New York Times to set off much of a discussion on whether or not the European or U.S. labor model is better. Although it might be a more fitting subject for a Labor Day weekend, if you have a few minutes over this three day break, you might read, U.S. Unemployment Rate May Soon Top Europe’s, and give some thought to the differences between the two models.

Those differences go beyond the flexibility inherent in hiring and firing, with the European model being based on more of a human rights notion of fair treatment as opposed to the U.S.'s anti-discrimination model. Although that difference may not always be apparent, in some areas, whether or not to have legislation focusing on bullying behavior in the workplace, for example, the difference is significant, It at least partly explains why such legislation is much more readily received in jurisdictions outside the U.S.

NLRB Speaks on Two Member Decisions

It might seem a little like inside baseball, but Jeffrey Hirsch at Workplace Prof Blog has a good explanation on the NLRB's statement that notwithstanding the DC Circuit's recent decision that it did not have the authority to issue two member decisions, it intends to continue to do so. NLRB's Reponse to Circuit Split on Two-Member Decisions.

For more background see Legality of 2 Member NLRB Decisions -- A Split Decision.

In many ways this is an attempt to keep the Board functioning notwithstanding the political neglect from past administrations (and Congress) which has too frequently treated the NLRB as unimportant.

No Early Supreme Court View on Lily Ledbetter Act

What was always a long shot did not pan out as the Supreme Court today issued its decision in AT&T Corp. v. Hulteen (S.Ct. 5/18/09) [pdf] without giving any guidance on how it would view the Lily Ledbetter Act. At issue was the present effect of a seniority system which treated pregnancy adversely that was used only before the Pregnancy Discrimination Act, although it had on ongoing consequences. In a 7-2 decision written by retiring Justice David Souter, the Court concluded that it did not.

The basic reason, the decision was not illegal when it was made and seniority systems have their own treatment under Title VII, which recognizes their importance in maintaining stability. That was the same reason the Lily Ledbetter Act was not relevant, even though the Supreme Court had allowed supplemental briefing on its potential impact. Quoting from the statute, the Court answered plaintiff's argument that it revived her cause of action:

For the reasons already discussed, AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” §3(A), 123 Stat. 6.

In a spirited defense that was really more of an attack on the original Gilbert decision that led to the passage of the Pregnancy Discrimination Act than anything, Justice Ginburg's dissent (joined by Justice Breyer) does not even mention the Ledbetter Act.

If the case had gone the other way, it is possible to imagine how it could have had broad ramifications. However, given its narrow holding, it seems unlikely to be very important beyond its impact on the parties.

Sometimes Overlooked in the Hullabaloo Over EFCA

This from the good folks at BNA who collect statistics and do analysis on union election success rates:

Unions won 66.8 percent of representation elections conducted by the National Labor Relations Board in 2008, the highest win rate since BNA PLUS, BNA's research division, began analyzing NLRB data in 1984.

For BNA's special report see the May 5, Daily Labor Report. ($)

Change Coming to Human Resources

Michael VanDervort who has a cleverly titled blog, Human Race Horses, makes a good point about how change can and will happen regardless of the passage of any legislation, 7 People Who Will Change Human Resources in 2009.

All seven named by Michael hold positions within the Department of Labor or at the NLRB. I was not aware that Mary Beth Maxwell, who was the Executive Director of American Rights at Work, a pro-EFCA group had been named as a Senior Adviser to Secretary of Labor Solis. Maxwell's name had been bantered about for the Secretary position itself.

Legality of 2 Member NLRB Decisions -- A Split Decision

The D.C. Circuit says no, the 7th Circuit says yes. For the details, see Ross Runkel's post, Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.

To make matters even more complicated, the 1st Circuit in March held the 2 member decisions were valid, see Two Member NLRB Legal, At Least in the First Circuit.

This kind of circuit split usually ends up in the Supreme Court, but it may also speed up the confirmation process for the Board nominations of Craig Becker and Mark Pearce. Even when they are confirmed, there will still be one vacancy on the five member board.

Congrats to Another Old Timer

Mike Fitzgibbons who had the first Canadian labor and employment law blog, Thoughts from a Management Lawyer, has just had his 6th anniversary, Another Day Another Blog Anniversary.

If this blog was even in part an inspiration for his, as he so nicely says, then I have assuredly made one clearly positive contribution to the blogosphere.

Congratulations Mike and please keep posting.