Compliance Plans -- Showing How You Are Not Breaking the Law

Seth Harris, the number two person in the Department of Labor, has announced the intention of the DOL to require employers to adopt compliance plans "aimed at ensuring they do not violate wage, job safety and equal employment laws," according to Steve Greenhouse's report in yesterday's New York Times, U.S. Outlines Plan to Curb Violations of Labor Law.

This will be in the form of regulations, which the article notes will be more than a year long process. Additionally, many of the ideas are still being "worked out" but the one concrete example is an interesting one, the use of independent contractors. According to the article, Harris forsees the rules requiring an employer who uses independent contractors, to provide a written explanation of why they should be considered independent contractors rather than employees and give these workers a copy.

Obviously, the battle lines are being drawn. This announcement does nothing but re-enforce my view that just like a river, when one area of advance is blocked, the river does not go away, it just moves in a different direction. Without the ability to pass legislation, it seems ever more clear the new focus of the Obama administration in labor and employment will be on the regulatory front.

No Class Arbitration Under the FAA Unless Specifically Agreed, At Least for Now

Today the Supreme Court decided a case important in the employment law field although the underlying case was a commercial dispute. The question in Stolt-Nielsen v. AnimalFeeds International (S.Ct. 4.27.10) [pdf] was whether under the Federal Arbitration Act, arbitrators could decide that class action was appropriate if the arbitration agreement was silent on that issue. Holding that the answer was no, Justice Alito wrote:

From these principles, it follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.

The vote was the now familiar one with Justice Alito being joined by C.J. Roberts and Justices Scalia, Kennedy and Thomas. Justice Sotomayor did not participate and Justice Ginzberg wrote the dissent. In an argument that too has become familiar, she argued that the Court was prematurely answering the question.

This is extremely good news for all the employers who have arbitration agreements which are silent on class action.

However, just like the members of the majority, the members of the dissent, and even the argument for the dissent, we all know what comes next -- the cry for Congressional reversal.

Hopefully I will be wrong, as class arbitration is something that should be undertaken only after a long and careful study. In fact, class actions may be in for such a look in the Duke v. Wal-Mart decision which ultimately has to end up on the Supreme Court's plate.

The possible pyrrhic nature of today's victory for employers could come if it sparks greater interest in passage of the Arbitration Fairness Act, which would in its present form solve the question of employment law class action cases in arbitration by doing away with arbitration in such matters altogether.

Round 2 in Dukes v. Wal-Mart to Plaintiffs

Today, in a 6-5 decision the 9th Circuit has affirmed the lower court's certification of a 1.5 million person class in a Title VII sex discrimination claim again Wal-Mart. See the article at Yahoo Finance, Court: Wal-Mart to face massive class action suit.

The decision itself checks in at 137 pages, which includes what the Yahoo Finance article calls a "blistering dissent." I have not read it yet, but I will hopefully get around to it before Round 3, which could be when the application for certiorari is filed, although there may be some more interim skirmishing in the 9th Circuit.

POWER To The People and Unintended Consequences

Immigration is a political hot button, which may be one of the greatest understatements of the year. It is certainly an issue on which people disagree, unfortunately, often disagreeably.

I certainly don't want to add to that unhelpful dialogue, but I have to admit my first reaction on reading the substance of the POWER Act (Protect Our Workers from Exploitation and Retaliation Act) was to quickly jump to what I forsee as unintended consequences.  The bill was introduced by Senator Menendez (D - NJ) and at this point has only three co-sponsors, Senators Gillibrand (D-NY), Murray (D-Wash), and Harkin (D-Iowa).

In short, the bill would prevent the deportation of individuals during the pendency of certain proceedings. One is criminal prosecutions where the individual is important to the prosecution. I can see how that could help overall crime enforcement and since the initiating action, a crime, is by some one other than the person tryng to avoid being deported, not that easy to abuse.

The other type of proceeding hower is serious labor violations. Under that section, an individual could avoid deportation if the individual:

(2)(A) has filed, or is a material witness to, a bona fide workplace claim (as defined in section 274A(e)(10)(B)(iii)(II) of such Act, as added by section 3(b)); and

(B) has been helpful, is being helpful, or is likely to be helpful to--

(i) a Federal, State, or local law enforcement official;

(ii) a Federal, State, or local prosecutor;

(iii) a Federal, State, or local judge;

(iv) the Department of Homeland Security;

(v) the Equal Employment Opportunity Commission;

(vi) the Department of Labor;

(vii) the National Labor Relations Board; or

(viii) other Federal, State, or local authorities investigating, prosecuting, or seeking civil remedies related to the workplace claim.

A summary of key provisions by the National Immigration Law Council makes it seem that protection from deportation would extend to a civil claim:

Stay of removal and employment authorization. Workers who have filed workplace claims or who are material witnesses in a workplace claim may receive a stay of removal and employment authorization until the workplace claim is resolved. This would allow workers to more effectively claim their labor rights and would allow the U.S. Department of Labor (DOL) to effectively prosecute employers who break the law.

It is not clear whether the suit has to be prosecuted by the government or if protection is extended to a suit where the individual employee is the plaintiff.

Although there is a provision that filing a claim just to avoid deportation will not be allowed, it does not take a genius to figure out that this statute will lead to a lot more suits and that "protection" against suits filed for that purpose is feeble to non-existent.

One of the aims of the legislation is certainly laudable, to provide a counter-balance to those unscrupulous employers who hire illegal aliens, take advantage of them and use either actual immigration enforcement or the threat of it to insulate them from liability for their wrong doing.

I won't argue with that aim, but on first blush, I have to believe there is a better solution.

Hat tip to Prof Marcia McCormick at Workplace Prof Blog,  Bill to Protect Non-Citizen Workers.

The Future of Unions: A Key Question

BNA's Daily Labor Report ($) has an article based on its in depth interview with the soon to be former head of the SEIU, Andy Stern, that is well worth the read. See, As Retirement Nears, SEIU's Stern Says Shift in Work Processes Top Issue Facing Unions.

The money quote for me:

Are there different ways workers can be successful in the 21st century in addition to unions or a different role for unions in the 21st century?

Regardless of how you feel about him, Stern has to be viewed as one of the more innovative leaders of the union movement, certainly in my career (and this week end is my 35th year law school reunion).

Although my practice has been much more oriented to employment than labor law, as an interested and somewhat better informed observer than many, that sentence says succinctly what I have thought about unions for a long time.

I believe unions have not adapted to the changing world as fast as needed. In what is a gross over-simplification, unions are operating on a blue collar model in what has increasingly become a white collar workplace; a world where a career is marked by multiple jobs and even free lance type assignments from multiple companies, not one job with one company for your working life.

One could quibble and suggest that by assuming, not questioning, that there is a continuing role for unions that Stern may not be really getting to the ultimate core of the issue. That could well be merely semantics and saying it that bluntly could hardly be expected of someone who has spent his life in the organized labor movement.

Stern hopes to find a spot at a university or other organization to think about things that he didn't have time to do as he was meeting the daily duties of running a large organization.

It will be interesting to see what thoughts and/or actions emanate from Stern's reflections. The common wisdom would be that whatever it is, it will be strenuously opposed by the business community. But his underlying point is a good one:

 If you want to have a middle class in America there has to be some way for workers to share in the gains, not just share in the pain.

While it might well be that I would disagree with the conclusions that Stern, and whatever group he gathers arounds him, reaches, I am glad to see someone with his experience embarking on the journey.

He has posed the right question.  I wish him well.

First Employment Law Test for Justice Steven's Replacement: Figuring Out the Cat's Paw

Assuming that notwithstanding the current posturing, come the first October in 2010 there is a replacement for Justice Stevens, one of their first tests may be helping to define the parameters of the Cat's Paw theory in discrimination cases. An issue that has been lurking around the Supreme Court agenda for awhile. See my earlier post, 5th Circuit Panel Looks At Cat's Paw Theory .

As is almost always the case, the first to bring it to my attention is Ross Runkel at his LawMemo Employment Law Blog, SCOTUS will review "cat's paw" case. The issue in the 7th Circuit case of Staub v. Proctor Hospital(3/25/09):

In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

A couple of quick points. The underlying cause of action is USERRA which is not a statute that often comes under Supreme Court review. Since the Cat's Paw theory is more general in nature, I don't think that means we will necessarily get much insight into how the Supreme Court views USERRA. However, given the group that it protects, one would expect most courts to give it as pro-employee favorable view as any statute.
And one of the frequently mentioned candidates for the Supreme Court position is Judge Diane Wood of the 7th Circuit. She was not on the panel that decided Staub. It would be somewhat ironic if she were appointed and one of her first employment law cases as a Supreme Court Justice was reviewing the handiwork of her generally more conservative former peers.

Medical Marijuana: Accomodation Required? Which Way Do You Think Oregon Went?

Probably depends on how liberal you view Oregon. Since I have spent little time there (which will hopefully be somewhat ameliorated by a vacation week there in a couple of months) my guess is based more on perception than actual knowledge. If pushed, I would have guessed for a pro-employee outcome.

But I would have been wrong. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (Oregon 4/14/10), the Oregon Supreme Court dealt with it succinctly:

The Oregon Medical Marijuana Act authorizes persons holding a registry identification card to use marijuana for medical purposes. ORS 475.306(1). It also exempts those persons from state criminal liability for manufacturing, delivering, and possessing marijuana, provided that certain conditions are met. ORS 475.309(1). The Federal Controlled Substances Act, 21 USC § 801 et seq., prohibits the manufacture, distribution, dispensation, and possession of marijuana even when state law authorizes its use to treat medical conditions. Gonzales v. Raich, 545 US 1, 29, 125 S Ct 2195, 162 L Ed 2d 1 (2005); see United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483, 486, 121 S Ct 1711, 149 L Ed 2d 722 (2001) (holding that there is no medical necessity exception to the federal prohibition against manufacturing and distributing marijuana).

The question that this case poses is how those state and federal laws intersect in the context of an employment discrimination claim; specifically, employer argues that, because marijuana possession is unlawful under federal law, even when used for medical purposes, state law does not require an employer to accommodate an employee's use of marijuana to treat a disabling medical condition. ...We also hold that, under Oregon's employment discrimination laws, employer was not required to accommodate employee's use of medical marijuana. (emphasis added)(all interior cites removed)

It will be a long time before that question ever arises in Texas, but I have been surprised how many times it has come up for the employers that our firm represent in those states where some form of medical marijuana use is legal.

Given that legalization is on the ballot in California in November, see a summary of the proposal and get the actual text here,  this could become an even bigger issue.

Hat tip to the locals who called this to my attention, the folks at Stoel, Rives who not only posted about the result, Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana, but filed an amicus brief on behalf of the Pacific Legal Foundation and the National Federation of Independent Business, and to  Ross Runkel, Professor of Law Emeritus at Willamette University College of Law (Salem, Oregon).

The Supporter Side Politics of EFCA

At least for now, conventional wisdom has consigned EFCA to a post-mortem phase, which from the union perspective means, what went wrong? For some interesting background on Majority Leader Harry Reid's interest in obtaining its passage and what actually kept the bill from being voted on in the Senate, see Jane Hamsher's insightful views at What Happened to the Employee Free Choice Act? posted at the progressive blog, FDL.

If you are not familiar with Jane Hamsher, she is a film producer who started Fire Dog Lake as an individual blog. According to the Wikipedia article about her, it is named for Hamsher's favorite activity at the time it was started, sitting by the fire with her dog while watching Lakers' games. That's such a great story, if it is not true (and I have no reason to believe it is not) it certainly should be!

MDV with a Twist: Union v. Union

A San Francisco jury has just returned a verdict in a lawsuit brought by the SEIU against a rival union, the National Union of Healthcare Workers. This is the next step in what has been a long battle between the SEIU and the faction that that broke away from it to form a new union. For some of the background, check out A Battle for Labor's Future by Dan Clawson which was published in Z Magazine in June, 2009.

BeyondChron writer Randy Shaw, in his own words, "rushed right from the courtroom to get out this story, and some of my numbers on the verdicts may be slightly off," on story that is headlined, BREAKING: SEIU Wins $1.5 Million Verdict in Trial Against NUHW.

I have not followed this internecine fight, but from the tone of Shaw's article it seems he is taking the NUHW side. Noting that the $1.5 million was far less than the $25 million SEIU sought, he also takes the view that the suit had four purposes and perhaps the strongest reason was merely personal. He thinks the suit failed in that goal. With respect to the other three goals he attributes to the SEIU for this litigation, he had this to say:

The first three [goals] were to deplete NUHW resources by forcing its leaders to spend time and money defending themselves, send a message to hospital and home care workers facing elections that NUHW cannot not be trusted, and turn the Rosselli leadership team into a cautionary example for other SEIU locals that are considering publicly questioning President Stern’s agenda. None of these goals were achieved by the verdict.

First, NUHW has far more organizing resources today than at any point since the trusteeship began. NUHW’s organizing was not impeded by the trial. Second, the verdicts say nothing about workers not being able to trust NUHW. To the contrary, the verdicts punished former SEIU-UHW leaders for providing too much loyalty to members. Had NUHW leaders gone along with the transfer of home health care workers out of the local without a vote, the trusteeship would not have been imposed and many would not have jury awards against them today.

Significantly, Sal Rosselli, long described by SEIU as the leader who single-handedly pushed SEIU-UHW over the edge, did not get an award much larger against him than the others (the award against Rosselli was $70,600, Borsos, Lewis, Martin was $66,600, Goldstein $73,850, with Cornejo and others at $36,600. Paul Kumar won a defense verdict). Third, as for the lawsuit deterring internal SEIU criticism, since the lawsuit began two major SEIU locals -- 888 in Boston and 1021 in the San Francisco Bay Area -- have elected reform slates.

His view of the real winner from the case is also interesting:

The chief beneficiary of this trial is likely to be hospital owners USC University Hospital in East Los Angeles, who will use the jury verdict as part of their ongoing strategy to convince workers to vote for “no union.” Management will not only make the case that an independent jury has confirmed that workers cannot trust NUHW’s leadership to protect members, but will also argue that workers should avoid being caught in the middle of inter-union disputes so rancorous that they end up in federal court.

Rarely do parties say nice things about each other during the heat of litigation and it does seem quite likely that testimony taken from this trial is apt to appear in future union campaigns.

Update (4.12.10): Thanks to Rick Bales at Workplace Prof Blog for picking up that Randy Shaw has revised his story to indicate that the collectible verdict will be not quite 3/4 of an MDV as reflected in his revised story, which the above link should still reach.  Of course, verdicts are just a jury's answer and the real number doesn't appear until the Court enters a judgment after consideration post-trial motions.

iPad and the Global Workplace

Two topics that I don't write about a lot, globalism and workplace safety, are merged in a Technomix Fast Company post written by Kit Eaton, Is Pressure at iPad Maker Foxconn Behind Four Recent Suicide Tries?

Because China based Foxconn is the maker of some of the principal parts of the newly released Apple iPad, the quick and easy conclusion is that there must be a link between the build up related to its highly anticipated release and the four attempted suicides.

But as is frequently the case quick conclusions are not always founded on good information. Eaton didn't go there automatically and the information about the personal nature of some of the problems and the fact that suicide is more common in China than in other countries provides a more rounded view.

On a more general note, one statement in particular caught my attention:

Statistical random clustering is also a surprising phenomenon that occurs more frequently than "common sense" thinking would suggest.

There's no attribution for the comment but it does pique one's curiosity and is another reminder that caution in drawing conclusions from "the obvious," is often wise.

The Flavor of the Season: Disparate Impact?

In times past, one could go a fairly long time without much discussion of disparate impact, but two posts in other blogs today caught my attention. First, Paul Secunda has a post about new scholarship Seiner and Gutman on the New Disparate Impact.

Professor Secunda calls it a "very worthwhile read among the increasing literature on this watershed case [Ricci v. DeStefano (S.Ct. 6/29/09)]. He quotes the abstract of the article in full, but the last paragraph and one-half is enough to give you a flavor and a tease:

... After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.

This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.

Then my fellow Texan, Russell Cawyer, who blogs at Texas Employment Law, had this note, Is the EEOC Getting Interested in Disparate Impact Claims? It was two informal discussion letters from the EEOC, one on the subject of requiring a master's degree and the other on "credit checks" as they relate to the possibility of a claim for disparate impact that caught his attention.

Like any field of endeavor, there tend to be trends, hot buttons, flavors of the week,month etc. in the employment law field. Is it disparate impact's turn? Maybe you should think of it as being on a trip to Ben and Jerry's -- it's too early to order, but not too early to think about what other scoop you want to go with your disparate impact Chunky Monkey.