PrawfsBlawg

Work Email: "I Always Feel Like ... Somebody's Watching Me"

No, this post is not about the singer Rockwell or that annoying Geico commercial, but about whether you should just assume that your boss monitors your email.

A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:

Big Brother is watching. That is the message corporations routinely send their employees about using email.

But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.

To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.

Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.

Hat Tip: Joe Seiner

Paul Secunda

Widespread Employer Under-Reporting to OSHA

So finds a new astonishing and disturbing report released by the GAO this past Monday and reported on by the New York Times:

Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.

The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.

The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .

According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.

It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship.  It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.

OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."

And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.

Hat Tip: Josh Pollack

Paul Secunda

Does Wal-Mart Use of Check Cards for Pay Purposes Violate Wage Payment Laws?

The Wall Street Journal reported two days ago:

Wal-Mart Stores Inc., the nation's largest private employer, is eliminating paper payroll checks in the U.S., transferring workers' earnings to a debit card if they decline direct deposit to a bank.

Wal-Mart is the biggest company yet to make the move that it said will save paper and money. It estimates the move will save 257,572 pounds of paper a year. It declined to specify the savings but said the shift will reduce its payroll costs . . . .

Some Wal-Mart workers last month received earnings electronically in the form of credit to a MasterCard Inc. debit card. The program will roll out nationally this month, though many of Wal-Mart's 1.4 million U.S. workers will continue to receive paper checks for months while it is fully implemented. About half of its U.S. workers now receive paper checks.

Though the debit cards save companies money by reducing payroll costs, consumer advocates have criticized some card programs, noting that workers are often charged fees to access their money or even check balances.

I understand the consumer adovocates point and I appreciate the environmental angle, but as an employment law professor I wonder (out loud) whether this arrangement could violate a state's wage payment and collection law?

At least in Michigan, under the Michigan Wages and Fringe Benefits Act, the answer appears to be "no."  There, Mich. Comp. Laws Ann. § 408.476 (West Supp. 2006) allows Michigan employers to mandate use of a payroll card by employees.  Most of these laws require that employees be paid in cash or check, and not in some other form of payment. 

Do any readers have insights from other states?

Hat Tip:  Hammad Haider-sha

Paul Secunda

The NFL Commissioner Asks for Labor Law Reform?

Who knew that the commissioner of the NFL was such a labor law aficionado?  From Yahoo! News and the AP:

Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.

"We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law," Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.

Recent court decisions "call into question the continued viability of the steroid policies of the NFL and other national sports organizations," Goodell said. 

I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players. Here is the summary of that case again that started all of this:

In Williams v. NFL (8th Cir. Sept. 11, 2009), the appeals court affirmed three legal conclusions of the district court: 1. the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings were not preempted by section 301 of the Labor Management Relations Act; 2. their Minnesota common law claims were preempted by section 301; and 3. the arbitrator's award upholding the player's suspensions for using banned substances would be upheld.  The NFL Players Associations was at least initially successful in getting it claims heard that they had some statutory defenses to the suspensions under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Minnesota Consumable Products Act.

My colleague Matt Mitten, director of the National Sports Law Institute here at Marquette, thinks the court got it wrong:

The court gives no consideration to a national professional sports league's need for uniform rules by permitting state law to invalidate the terms of a collectively bargained anti-doping program. It conflicts with other federal appellate cases holding that state labor, antitrust, administrative, and tort laws cannot be used to regulate national sports leagues and governing bodies, which require rules that must be applied and enforced consistently nationwide. It's almost certain the NFL will petition the Supreme Court for cert., and I think there's a reasonable chance the Court will grant its petition.

Major league baseball also believes in a legislative fix:

Rob Manfred, Major League Baseball's executive vice president of labor relations, also discussed a legislative remedy in his testimony, saying "a narrowly drafted statute could solve the problem faced by professional sports" while preserving the role of collective bargaining in drug programs without interfering with states' prerogatives.

Legislatively or judicially, it would not be surprising if what came out of all of this was some changes in the law which permit professional sports leagues some form of preemptive power to maintain uniformity in their substance abuse policies.

[Cross-posted on Workplace Prof Blog]

Paul Secunda

Employers Under Siege by the EEOC?

Not so says the EEOC.  From the National Law Journal:

Many of Burwell's clients who attended the breakfast are facing EEOC charges, some for the first time. "A lot of people had questions" for the agency, said Josephine Avery, vice president of human resources of the Motor City Casino Hotel, who attended the breakfast. It was "a good opportunity to hear what they had to say."

And what did the EEOC say? "We're not the big bad government coming after them, and we truly do want to forge a partnership [with employers], but we have to enforce these laws," said Deborah Barno, the supervisory trial attorney in the Detroit EEOC office, noting that the jobless are seeking legal redress like never before. "Our lobby is full every day, and mailed-in charges are increasing even more." The Detroit office of the EEOC alone has 2,500 complaints pending before it — 25% more than it had pending at the start of the recession in 2007.

Welcome to the world of employers under siege. Discrimination complaints from their former and current employees are flooding into the EEOC and similar state agencies. Management lawyers are getting their desperate calls. And the lawyers anticipate that, by the end of 2009, the number of claims will look even worse.

From 2007 — the recession first started in December of that year — to the end of 2008, overall claims filed with the EEOC increased by 28%, from 83,000 to 95,000. Discrimination claims jumped by 28%, and retaliation charges — what lawyers call the hottest charge these days — jumped by 22% last year, from 27,000 to 33,000 claims. The EEOC does not have numbers yet for 2009.

Clearly, the EEOC is receiving more complaints because of the economic recession, but are the EEOC regional offices pro-employee too much?  I would be interested in readers comments on their notions from both sides of the bar.

[Cross Posted on Workplace Prof Blog]

Paul Secunda

Ricci Glitch

The following post was written by my FIU colleague Kerri Stone, who writes on employment discrimination:

In Ricci v. DeStefano, the Supreme Court held that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In the case, the City of New Haven violated Title VII when it refused to certify the results of a test given for promotion on the basis that “too many whites and not enough minorities would be promoted were the lists to be certified,” and the City feared a disparate impact lawsuit. Having had not too much time to digest the opinion at this point or fully research the issues, I have only initial impressions to share about it, but one that I thought was interesting.

While, as the Court said, a “disparate-treatment plaintiff must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job-related action,” does this mean that anyone who suffers an adverse action (and there is debate as to whether one was conferred here) because of a decision made on the basis of a racial consideration has been discriminated against “because of” his race? The Court’s language on this point is not entirely clear. The Court proclaimed that the premise of its analysis was that “[t]he City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense [because a]ll the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race- i.e., how minority candidates had performed when compared to white candidates.” The Court noted that the District Court had concluded that the City’s “own arguments ... show that the City's reasons for advocating non-certification were related to the racial distribution of the results,” and found, based on that, that “[w]ithout some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.” The Court later noted that “the City made its employment decision because of race,” when it “rejected the test results solely because the higher scoring candidates were white.”

Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race….” After reading this case, however, I have to take issue with the Court’s assertion that disparate treatment cases “present ‘the most easily understood type of discrimination.” As even the Court recited, disparate treatment claims succeed “where an employer has ‘treated a particular person less favorably than others because of’ a protected trait.” But does this case open a door to what might be called a “transferred intent” theory of Title VII, whereby one who is not the intended victim of a race-based decision may sue in the context of a policy in which another group is discriminated against?

Consider a tougher hypothetical. If an employer with an expressed bias against Asian Americans announced that in attempt to lower the number of Asian Americans in his workforce, he would be firing all employees who had one-syllable last names, and if a non Asian-American got fired because of this, would a cause of action under Title VII be viable? I ran this idea by Professor Anne Lofaso, and she commented that upon reading the case, she had thought that it would make proving discrimination cases easier for all Title VII plaintiffs.

I am thinking of writing on this principle, and I’d love to hear others’ thoughts.

Stimulus Blogging III: Conditional Grants & the Tenth Amendment

Legal controversy over ARRA, the stimulus legislation, continues.  This week, a student in South Carolina filed an original petition in the South Carolina Supreme Court, seeking a declaration that the legislature could act to apply for more than $700 million in funds for S.C. education that the Governor has refused to request.  Last time I posted, I argued that under ordinary principles of statutory interpretation, the statute can plausibly be read to permit legislatures to "apply" for education funds, and almost certainly to apply for federal unemployment subsidies.  But, as I noted, the Congressional Research Service thinks that the statute should not be read that way, in order to avoid the 10th-Amendment question that, according to CRS, would be posed otherwise.  (The South Carolina AG also suggested this argument in a footnote to their memo on the question).

CRS (and, to the extent he takes this position, the SCAG) is off-base on this one, I think.

Although the 10th Amendment bars Congress from "conscripting" state non-judicial officers, a conditional offer of funds is not conscription.  The Supreme Court has said as much repeatedly, most notably in South Dakota v. Dole and New York v. United States.  (As an aside, I've argued, drawing on the work of Rick Hills and others, that the best explanation for that combination of rules is that it forces Congress to internalize the costs of enacting and enforcing legislation.)  So, ARRA is a conditional offer.  Where's the conscription?

CRS's argument, as I understand it, is that allowing the legislature to "apply" in place of the governor would be, in effect, allowing Congress to enlist the state's legislature to conscript its governor.  That's, um, a strange argument.  For one, if the legislature applies itself, it isn't forcing the governor to do anything; in fact, it's acting without the governor at all.  (Although para. 42 of the S.C. complaint also asks the Court to hold in the alternative that the legislature can force the Governor to apply.)  For another, there's nothing at all unusual about a decision by some state officials that binds other state officials.  No one would argue that a joint decision by governor and legislature to accept federal funds is a prohibited "conscription" because it also binds inferior state officers, such as the Secretary of Education. 

I think the conceptual problem that trips up CRS is the potential puzzle over what the federal-law consequences should be if state law does not ordinarily authorize the actor specified by federal law to bind other state officials.  So, in Jack Balkin's example, what if a federal statute says that the capital-house janitor can accept federal funds?  Are the conditions attached to those funds binding on the state? Or, more realistically, what if the state treasurer, a person with no real policy authority, cashes a $700 million federal check?  Is the state now bound, at least by estoppel, to follow the accompanying federal terms? 

These are interesting questions (and I've addressed them in depth elsewhere), but at this point they have nothing to do with the stimulus.  Even unelected state officials, such as state Secretaries of Education, routinely accept federal money in ways that bind states, and no one has ever suggested that these decisions would so undermine federalism norms that they should be problematic under the 10th amendment.  Hard to see how, if these are fine, a decision by an entire state legislature would be a problem.  Plus, the question for now is -- can the feds cut the check?  Also hard to see how disbursing money is conscripting anyone to do anything.   

--Brian Galle

NLRA Trumps ADEA in 14 Penn Plaza; Whither Gardner-Denver?

The Supreme Court has just handed down its decision in 14 Penn Plaza LLC v. Pyett.  In a 5-4 decision, lined up according to the traditional liberal/conservative split, the Court held that a union-negotiated collective bargaining agreement (CBA) can force individual employees to arbitrate their ADEA claims against the employer.  The CBA in 14 Penn Plaza was negotiated between Local 32BJ of the SEIU and NYC's Realty Advisory Board (RAB) -- a massive CBA covering thousands of workers.  The Court held: "The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA."

A few notes:

• The majority appears not to have overruled the holding in Gardner-Denver, but it admits it has overruled much of the "broad dicta" in the case that was "highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights."  However, it claims that Gilmer, rather than the present case, did the overruling.
• Justice Stevens and Justice Souter both dissent, focusing on the majority's abrupt rejection of prior precedent.  Both point to the fact that Congress chose not to overturn Gardner-Denver in the last 35 years, so this ruling is (in their view) contrary to Congressional intent.
• The majority does leave a potentially huge hole in its holding, because it does not address the concern that a union may choose not to pursue an individual employee's claim through arbitration.  The majority states: "[A]lthough a substantive waiver of federally protected civil rights will not be upheld, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from 'effectively vindicating' their 'federal statutory rights in an arbitral forum'" (quoting Green Tree).  Justice Souter's dissent notes: "On one level, the majority's opinion may have little effect, for it explicitly reserves the question whether a CBA's waiver of a judicial forum is enforceable when the union controls access to and presentation of employees' claims in arbitration, which is usually the case."
• What will unions and employers do with this new-found power?  In its amicus brief, SEIU claimed that the CBA did not cover the workers' claims, since both the union and the employer did not think the claims had merit, and under the CBA only disputes between the union and the employer were arbitrable.  The Court seemed to ignore this argument as not presented below.  I would guess that 14 Penn Plaza would be a double-edged sword for most unions.  Neverthless, the politics are interesting: a holding that provides more power to unions gets the five conservative justices to overrule fairly venerable precedent.

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Is uncoercive workplace democracy impossible?

The ongoing propaganda battle over the Employee Free Choice Act (EFCA) is largely two sides’ trading anecdotes. The apparent futility of the debate suggests a larger and depressing possibility – that uncoercive workplace democracy is simply impossible.

EFCA provides (among other things) that employees can certify their desire to form a union by checking a card rather than by voting in a certification election. Employers’ organizations argue that the “card check” deprives employees of a secret ballot, exposing them to intimidation by union organizers. (The idea that EFCA undermines the secret ballot is a constant refrain in the anti-EFCA press). EFCA supporters respond that the “secret ballot” in certification elections demanded by Chamber of Commerce types is actually an intimidated ballot: Employers use intimidating tactics – for instance, threatening to close plants or lay off workers if union representation is approved -- without fear of serious sanction from the NLRB.

Without purporting to be any kind of expert in labor relations, I am inclined to think that both sides are right. It is hard for me to imagine that union organizers would not pressure workers during card-signing campaigns in ways that we would find intolerable in, say, a school board election. (Do union folks seriously contend that a worker who refused to sign the card would never face some degree of ostracism from a pro-union workplace?) Likewise, it is common knowledge that employers pressure workers with thinly veiled threats of job loss if they vote for the union -- threats that often materialize in actual termination. In theory, the NLRB could outlaw tactics deemed to be coercive, and Congress could stiffen the sanctions to make such limits stick. In practice, the NLRB will likely be either Democratic (pro-labor) or Republican (pro-management) and dilute any statutory limits that Congress enacts.

Is the moral of the story that uncoercive democracy in the workplace is a pipe dream? This is a sad thought to someone like myself with a soft spot for Brandeisian localism. But the more the defenders and detractors of EFCA defend their version of democracy, the more dispirited about workplace democracy I become.

Minority College Football Coaches and Civil Rights

The new-old controversy in college football is the lack of Black head coaches in Division I-A college football. With recent firings and resignations, there are four Black coaches (out of 119 schools) in a sport in which approximately 46 % of players are Black. Exacerbating this problem is the recent trend of current head coaches at major programs designating a current (usually white) top assistant as the new future head coach whenever the current coach retires, a process that pretermits any future coaching search in which outside, Black candidates might be considered for the job. Essentially, the practice locks-in the current state of coaching at many major schools.

Richard Lapchick, one of the leading scholars on collegiate sport, race, and society, criticizes this state of affairs. He argues that the NCAA should adopt a version of the NFL's "Rooney Rule," which requires that teams interview at least one minority candidate for a head coaching job. Lapchick calls his proposal the "Robinson Rule," after the late Eddie Robinson, the all-time-winningest D-I coach at historically back Grambling State (a D-I-AA school) who never even got an interview for a D-I-A head job.

So here are my questions for con law and employment-law types out there: Would such a rule be constitutional under the Fourteenth Amendment? The NCAA is not a state actor, but individual state schools would be in following and carrying out such a rule. So, given the current state of Equal Protection law, would it be unconstitutional for a governmental actor to automatically interview and give serious consideration to a minority for every position? Or, as to private schools, does it violate Title VII? Finally and conversely, would the NCAA's failure to adopt such a rule (or a similar rule designed to ameliorate the dearth of opportunities for minority coaches) violate Title VII (Lapchick reports that the Black Coaches Association is considering using Title VII to challenge current hiring practices)?

A Good Explanation of Labor Costs in the Auto Industry

With a bailout/bridge loan for the auto industry a perhaps increasing possibility albeit not a certainty, it's worth checking out an article in today's  New York Times which breaks down the labor costs for the unionized American car makers and their competitors in non-union plants in the U.S. (e.g., Toyota and Honda).

The bottom line is that the difference in total labor costs is partly a matter of wages and benefits to current workers.  Unionized workers get around $55/hr and non-union workers get around $45/hr.  Most of that $10 difference is in benefits, not take-home salary.  But an even more important part of the difference is health care costs for retirees:  about $15-16/hr/worker for the unionized companies, but only around $3 for the non-union companies (note: this can be seen more clearly in a chart that is in the hardcopy version of the article).

The article then points out that this is not a matter of, say, GM providing more generous health care benefits to retirees, but rather at least mostly because GM simply has a lot more retirees than the more recent "transplant" companies.

The article then adds, "These retirees make up arguably Detroit’s best case for a bailout. The Big Three Three and the U.A.W. had the bad luck of helping to create the middle class in a country where individual companies — as opposed to all of society — must shoulder much of the burden of paying for retirement."

Isn't this also a good argument for some form of nationalized health care -- a system that takes the burden of providing these benefits off the shoulders of specific employers alone, without leaving individuals to cope with a private insurance market not likely to offer these folks attractive terms?

Finally, when considering these figures, it is also worth noting, as described here that the "'Big Three' U.S. automobile makers negotiated with the United Auto Workers (UAW) in 2007 to significantly reduce the salary and benefits packages for certain new employees."

Let me stress that I personally don't have a silver-bullet solution to the problems of the U.S. auto industry, nor do I have a detailed proposal as to what exact terms a bailout/bridge loan should contain.  But this line from Bruce Springsteen's "Youngstown" has been running through my head: 

Seven hundred tons of metal a day
Now sir you tell me the world's changed
Once I made you rich enough
Rich enough to forget my name

SEIU & Election Politics

If you have a hankering for election-related content, here is a story you might have missed.  It's a traditional story about union politicking for a particular candidate -- in this case, SEIU's work for Barack Obama.  Some details from SEIU's website:

Through October 30, SEIU's members have:

• Knocked on 1,878,421 doors.
• Made 4,405,136 phone calls.
• Sent 2,562,689 pieces of mail.
• Registered 85,914 voters.
• Helped more 10,982 people vote early.
• Distributed 52,005 workplace flyers.
• Made workers' voices heard by investing $13 million in independent expenditure ads that have run more than 10,000 times

The website clains: "No single organization has done more than SEIU to make sure that Barack Obama is our next president."  (Even the Democratic Party?)

It makes sense for SEIU to be making noise about its role in Obama's election.  The union is hoping for support for the Employee Free Choice Act (EFCA), which would allow employees to join unions by signing cards rather than requiring a secret ballot.  Politicos seem to think that the EFCA would be among the first pieces of legislation passed by an Obama administration and Democratic Congress.  Perhaps because of this, EFCA opponents have ratcheted up their public campaign against it.  (See George McGovern inveighing against it here.)

If you're interested in reading more about SEIU and union politics, I just have posted the final version of my paper, Mother Jones Meets Gordon Gekko: The Complicated Relationship between Labor and Private Equity (forthcoming Colorado Law Review).  The paper discusses how SEIU's political influence is part of its overall bargaining strategy -- particularly in its recent dealings with private equity.  One of the article's overall normative claims is that unions should be allowed to play politics like other businesses.  The effect of this election on the EFCA's chances is solid proof, in my view, of the importance of politics to the business of unions.

Public Responsibility for Stopping the Big Squeeze

It's a pleasure to be part of this discussion of Steven Greenhouse's masterful, though depressing, The Big Squeeze.  The book is impressive in scope, weaving together changes in corporate structure like outsourcing and contingent work, faces of globalization ranging from immigration to offshoring, shifts in management philosophy, and the assault on labor unions.  Greenhouse also tacks effectively between compelling, illustrative stories of individual workers and bigger picture analysis of trends backed up by a wealth of statistics and snippets of expert commentary.

Before raising some questions and concerns, I want to highlight an important piece of Greenhouse's analysis that often is missing from tales of workers' woes and what to do about them:  labor law enforcement.  Again and again, we see workers cheated out of wages by being required to begin work before they clock in, continue while nominally on breaks, finish tasks after they clock out, and even then having their hours deleted from payroll records at the stroke of a key.  Related themes are retaliatory firings for union organizing and workers exiled from employment's benefits or protections through misclassification as independent contractors or shunting into fly-by-night subcontractors.  Against this  backdrop, legal reforms like raising the minimum wage or strengthening union rights may be meaningless unless they can be enforced more effectively, and Greenhouse's policy recommendations helpfully reflect this pragmatic point.

Thinking about enforcement immediately puts the spotlight on the government and, more generally, the citizens and taxpayers.  Enforcing labor law, after all, takes money to hire the inspectors whose ranks, Greenhouse notes, have thinned, and it takes a political commitment to use public power on behalf of workers.  Unfortunately, I worry that the overall thrust of Greenhouse's argument leaves us ill-prepared to make the case for government action.  Almost every story has the same basic structure:  big corporation stomps on noble worker, or in more complex cases, big corporation forces small corporation (or middle manager) to do the stomping.  This way of telling the story lets almost all real people off the hook:  either we are fellow sufferers, or we are innocent bystanders.  That's great for focusing anger on the corporate miscreants, but I fear that it falls short, both morally and politically, when the solutions require all of us to put skin in the game.  I'll leave it there for now, but in subsequent posts I'll suggest a few ways of broadening the frame, both to think more about relationships among workers and to think more about relationships between the labor market and other institutions.

losers, and the losers who prey on them

I'm cursed with being a fan of what is now officially the most pathetic team in major sports -- it's sixteen years and counting of losing seasons for the Pittsburgh Pirates. Since being brainwashed by the guy who ran my little league team in New York City, I have variably enjoyed and endured the team's remarkable success in the 1970s, drug scandals in the 1980s, heartbreak in the early '90s (for which I've been mocked!), and irrelevance ever since. Beautiful ballpark, awful team. We did have the incomparable Roberto Clemente, the memory of whom makes lots of hard times bearable and whose visage on a Cheerios box stares down at me each breakfast. But even Roberto can't help me with this.

But now there's a law angle to my pathetic misery, and one that, if tweaked and simplified, could make a sweet contracts or labor law exam question. It's the story of a hapless franchise, a powerful sports agent, and a midnight deadline. Read all about it after the jump.

After finally firing a fantastically incompetent general manager, the Pirates have shifted their resources from mediocre, over-priced free agents to the amateur draft and scouting and player development in Latin America -- the best way for a small market team to compete. So this year we (I hope you don't mind if slip into the third-person plural sometimes) drafted the best player available in the draft, a third baseman named Pedro Alvarez who had just finished his junior year at Vanderbilt, and hailed originally from the Washington Heights neighborhood in NYC. Great kid, fabulous talent. The only catch: Alvarez is represented by Scott Boras, proud graduate of the McGeorge Law School and world reknowned for being the hardest of the hardball negotiators among sports agents. Alvarez and the Pirates -- and, of course, Boras -- are now in a dispute regarding whether they agreed to a contract on or about the night of August 15.

To simplify this sad story: As is Boras's MO, Boras delayed negotiations with the club until the very last minute before the signing deadline -- midnight on August 15. Sometime between 11:58 PM and after midnight, Alvarez agreed to a $6 million signing bonus, a figure that, it turns out, was not the highest bonus of this past signing season. As I understand it, there's no question that Alvarez verbally committed; nor is there any question that the verbal nature of the commitment was sufficient under Major League Baseball (MLB) practice, so long as the contract is ultimately confirmed by the MLB office and signed by the parties. What is contested, however, is whether Alvarez verbally committed before or after midnight, whether the Pirates were granted an extension by MLB to continue negotiating after midnight, and more importantly whether MLB could authorize extensions past midnight, something they've apparently done with one or two other teams this year and last (notably, to enable negotiations with other Boras clients). Soon after verbally committing, Alvarez contested the legality of his commitment and has refused to sign the contract to which he verbally committed, on the grounds (presumably) that the agreement was void for occurring after the deadline.

The MLB Players Union has now grieved the issue of MLB's practice of granting signing extensions beyond midnight -- a grievance that clearly will affect Alvarez and the other player for whom an extension may or may not have been granted this year, Eric Hosmer. Hosmer is another Boras client who was drafted by the KC Royals, and who actually signed his contract. He was already playing for a Royals minor league affiliate when the grievance was filed; MLB has now rescinded approval of his contract (thereby keeping him from playing in the minor leagues) while the grievance is awaiting adjudication by an arbitrator. The arbitration is scheduled for September 10.

A preliminary legal issue is the aribtrator's jurisdiction. Draftees are not yet eligible for union membership; accordingly, does an arbitrator limited to settling disputes between the league and its players have the authority to consider this question? There are also reports that some fairly significant facts are in dispute. Apparently, there are records of two phone calls between Boras and the Pirates, one placed at 11:58 and another after midnight. Some conspiracy theorists among Pirate fans -- who, in case you haven't already figured it out, detest Boras -- think Boras purposely disconnected the earlier phone call so that any agreement Alvarez agreed to would take place after midnight so Alvarez could later disavow it. The theory presumes that Alvarez flinched at the last minute and agreed to the Pirates' offer against Boras's advice-- in this narrative, he's a good kid, his dad drives a cab in NYC, and he just wanted a good chunk of money and to start his career. It's also unclear whether Hosmer actually agreed after the deadline; but apparently another Boras client, Julio Borbon, who signed with the Rangers last year after the draft, also agreed to a contract after the deadline. Neither Borbon, Boras, or the players' union challenged that agreement.

Equally interesting are issues with Boras's representation. There's no question that Boras is the preeminent agent in maximizing draftees' contractual value. When an amateur player signs with Scott Boras, he sends a signal to teams that he wants to get paid and is willing to risk the reputational hit that being represented by an extremely hardball negotiator frequently gets. But it's unclear what Boras hopes to achieve here. If the union wins and the arbitrator invalidates Alvarez's contract, Alvarez presumably couldn't squeeze the Pirates for more money because, of course, the signing deadline has passed. Alvarez can't return to play at Vanderbilt. Returning to the draft next year after sitting out the year -- perhaps playing in an independent league, as J.D. Drew (another Boras client) did after refusing to sign for the Phillies a decade ago -- risks not getting the $6 million he would have gotten this year, but also losing a year's interest on the bonus, a year salary and development.

The sad part, though, is watching how Pirates' fans have turned on the kid. All of the franchise's hopes, after all those losing seasons, were invested in Pedro Alvarez. He could turn things around -- after all, a similar issue arose after another Pittsburgh franchise, the Penguins, drafted another highly touted draft pick. That was Mario Lemieux, a future hall of famer who ultimately signed with the Penguins, spent his entire career in Pittsburgh, leading the time to unparalleled success. I don't think anyone begrudges the kid getting paid. It's both the disappointment of watching this spectacle and the idea that this is merely a "technicality" -- a strategic legal trick that an agent appears to be using to squeeze additional leverage and get out of a deal to which the player agreed -- that could lead to another dozen years of losing baseball.

Sources: Dejan Kovacevic of the Pittsburgh Post-Gazette has provided the best day-to-day coverage of this, as have the best Pirate blogs. Baseball Prospectus, as ever, has supposedly offered the most knowledgeable and thoughtful coverage, but it's behind a pay wall, and since the Pirates have been so awful for so long, I've invested more time in my NBA fetish and so dropped my subscription....

Link to Passive Discrimination Paper

The "Passive Discrimination" paper whose abstract I provided the other day is now available at SSRN.

Approaching Deadline: Current Scholarship in Labor and Employment Law, San Diego, October 2008

Even if you are not a hardcore employment, labor, discrimnation or benefits scholar, you can benefit from this lively and enriching program coming up soon in lovely San Diego. The deadline is quickly approach to submit your paper topics and abstracts to Third Annual Colloquium on Current Scholarship in Labor & Employment Law.  The Colloquium will be held October 23-25 in San Diego. The deadline for submission is August 31.

The organizers, Ruben Garcia,  Susan Bisom-Rapp and myself have begun putting together the panels based on the several dozens of submissions already in. As an insider, I can tell you that the topics are terrific, ranging from empirical analysis of discrimination to debates about constitutional law and the scope of public sector speech rights; from cognitive and behavioral studies to theoretical analysis of private and public law; from new frontiers in identity-based civil rights litigation to new developments in international and comparative law.

Harry Arthur is the keynote speaker and events will take place in all three law schools in town: University of San Diego, Thomas Jefferson and California Western.

The Future of Labor Law: The Public Sector; and States as Laboratories of Democracy

Labor law, some conventional wisdom says, is dead. True, union density in the private sector has taken a long slide from around 35% in the 1950s to under 10% today. In reaction, a number of schools do not even regularly offer a labor law class.  This, I suggest, is a mistake. There are still over sixteen million workers in unions today, and last year overall union density actually increased a bit. And while labor law under the National Labor Relations Act (NLRA) has been increasingly hostile to unions, did you know, e.g. that despite the failure of the Employee Free Choice Act (EFCA), many unions have recently won the legal right to be recognized by showing majority support through a "card check"? There is a strong present and future in labor law – just not entirely as we traditionally conceived of it.

The key is the public sector. In the past fifty years, union density in the public sector has risen from under 10% to nearly 40%. Indeed, today of all union members in the U.S., around 40% are government employees. Thus the practice of labor law is increasingly in the public sector. Yet few schools teach public sector labor. This is a shame, and not just for students who want to represent unions or management in labor relations or ponder the legal and practical issues involved.

Public sector labor law also a wonderful opportunity to consider the states as laboratories of democracy, and to consider questions of democracy as well as workers’ rights. Public sector labor law varies tremendously. They are typically modeled in part on the private sector law, the NLRA, but they can vary significantly. For example, public employees in most states cannot legally strike, but about eleven states (including Ohio) allow most public employees to strike. A majority of states allow at least some public employees to bargain collectively, but some limit bargaining to a few types of employees (e.g., police, fire, and/or teachers), and a significant minority bar all public sector collective bargaining. In states which allow bargaining, some allow unions to bargain over basically the same subjects private sector unions can; but a number of states significantly limit the subjects over which they can bargain; and significant minority of states do not permit any public employees to bargain. This "scope of bargaining" issue raises interesting policy debates about democracy and workers rights: what issues should be beyond the scope of bargaining and rather be in the hands of elected officials? The public sector also features interesting Constitutional doctrines, since the state-as-employer is a state actor.

The public sector also is an opportunity to try out rules different from those in the private sector. Last year, in the EFCA, unions unsuccessfully sought to amend the NLRA to, among other things, provide that employers must recognize a union with a "card check" majority. The law then was that employers could voluntarily recognize unions with such a majority, but were not obliged to do so. Later in 2007, the NLRB in its decision in Dana Corp. made the use of card-check recognition even more difficult (for details, see an interesting new piece by Raja Raghunath). 

Meanwhile, in the public sector several states have recently passed card-check recognition bills (New York has such a rule; recently Illinois, New Jersey, and New Hampshire passed this rule; and Massachusetts is coming). Also, the NLRB recently reversed a Clinton Board precedent and held that graduate assistants generally were not "employees" covered by the Act; the majority of public sector jurisdictions disagree. Indeed, many public sector jurisdictions allow supervisors to form unions and bargaining collectively; the NLRA categorically excludes supervisors. Of course, as noted above, many states have laws which are grant employees and their unions much more limited rights than those in the NLRA. While the traditional question has been, "how much of the private sector law should public sector jurisdictions adopt," a new question is, "should the federal private sector law be informed by developments in state public sector law?"

The future of labor law is in both the public and private sectors. Course offerings should acknowledge this, and scholars should check it out. There is much to chew on.