When a man is required . . .

What happens when a transgendered employee is hired for a position requiring a male? Well, if you were born a female, in South Jersey, you get fired. And file suit.

Equal Pay Day

Today is Equal Pay Day. Wear red if you believe women are not paid fairly. Wear green if you are the reason why. Wear blue if you believe pay disparity is caused by global warming (hint: it isn't).

Mediate!

Over the NFL's objection Federal Judge Susan Nelson has sent the NFL and the players to mediation in front of a federal magistrate. The NFL urged mediation is inappropriate until the NLRB rules on the legality of the decertification of the union. I cannot believe the current NLRB will restrict the right of players to decertify their union. Nor can I believe the court will refuse to address the players anti-trust claims. The judge also issued a strong warning to both parties that litigating rather than mediating was very risky.

McJobs

McDonald's has announced it plans to hire an additional 50,000 employees. It also said it intended to gentrify the pejorative term "McJobs" making it mean something better than low wage no benefit work.

Starving the Beast

The NLRB's budget is in the cross hairs of congressional budget cutters, and In These Times (pro labor) predicts dire consequences.

Oopsie

It appears some votes were missing temporarily in that Wisconsin Supreme Court race, and now counted those votes favor the incumbent over the labor backed challenger. Several reports indicate the vote count as corrected, is correct.

Dead EFCA

American Spectator has a pretty good "obituary" for EFCA.

Wisconsin votes

It is fascinating to watch from a distance the politics of Wisconsin. So much now driven by the struggle between a Republican governor determined to reign in public sector unions and allies of labor. It has certainly made the 2010 political trend favoring Republicans short lived. The real question is the resurgence of support for labor evidenced in Wisconsin likely to play out on a national scale. More after the jump

Shining a light

The House Oversight and Government Reform Committee chaired by Representative Darrell Issa (R. CA) is conducting hearings on the adequacy of the tentative agreement between the Postal Service and the American Postal Workers Union (APWU). This is apparently the first time congress has ever conducted a hearing about a collective bargaining agreement. The rub is concern that the agreement does not do enough to curb labor costs at USPS which currently constitute 80% of the operating costs. By comparison United Parcel Services labor costs are 60% of operating expenses and at FedEx Corp its 43 percent.

Whack, yikes! whack!

Well, its not exactly employment law, but its posted on a great blog for employment lawyers, Adjunct Law Prof Blog, and in light of the controversy concerning corporal punishment meted out at St. Augustine High School, a link here is appropriate. It quotes from a New York Times Article which notes the U.S. Department of Education estimates 223,190 children were subjected to corporal punishment during the 2005-2006 school year, and that this is a 20% drop from a prior survey. The article points to the Center for Effective Discipline Site which lists the states which ban corporal punishment. Apparently its legal still in 20 states, including Louisiana.

Polls favor public sector unions

Another poll, this one from Gallup, indicates the public is less anti-labor than some Republican governors would like.

Unemployment drops in March

Unemployment in March fell to 8.8%, a two year low. The full Bureau of Labor Statistics report is here.

NOLA construction company popped in harassment case

A jury has awarded $451,000 in damages against Boh Brothers for male on male sexual harassment. This case was litigated on behalf of plaintiff by the EEOC. Previous post here.

Bankrupt and rejected

In Burnett v. Stewart Title, Inc., the federal Fifth Circuit Court of Appeals (New Orleans) has joined the Third Circuit in holding that Section 525 of the Bankruptcy Code does not provide a cause of action against private employers who engage in discriminatory hiring practices against debtors in bankruptcy.

Final ADA regulations

Then EEOC has issued final regulations implementing the ADA Amendments Act.

Mandatory drug testing in the Sunshine state

Florida's newly elected Republican Governor Scott has issued an executive order mandating drug testing for new hires and random testing for many current employees. It has the ACLU and public sector unions squawking, and likely is going to draw a challenge to its constitutionality. But the real problem is that it is expensive, and while many employers swear by it, many others found the small number of positive test results called into question the benefit of testing. Drug testing has its place where there is sufficient reasonable suspicion to pass constitutional muster and in the situation where an employee has caused injury to person or property.

Wage Hour targets grocers

A Bunkie supermarket has been fined $35,000.00 by the Department of Labor for employing minors under the age of 18 in occupations the government deems hazardous. The Birmingham office of the Wage/Hour has announced an enforcement initiative targeting small grocery owners and franchisees in Mississippi and Alabama.

Politics as usual

Here is a really informative analysis of the issue of whether unions are disproportionally exempt from Healthcare reform. (They are not).

Formality rejected

In a divided opinion, (Breyer) the Supreme Court has decided that a written complaint is not a necessary prerequisite to a retaliation claim under the Fair Labor Standards Act. The Court refused to decide whether the complaint must be filed with  a court or the government, (as dissenters Scalia and Thomas urged) because the Employer did not raise the issue in its Petition for Certiorari. Nevertheless, much of the reasoning in the majority opinion would support the position that an internal complaint would also be protected by the anti-retaliation provisions.

Wrong

The NFL owners are meeting in New Orleans today. This Times Picyune story captures an important concept - the owners mindset is "the players are on strike, we want to negotiate." But that is not the case. The owners locked out the players. The players vaporized the union placing the controversy in court where antitrust law might be a bit of a problem for the owners. Commissioner Goodell's letter to the players also drew a heated response from players, particularly the part calling the players back to the bargaining table. After decertification the union is no longer authorized to represent the players.

Lets get ready to rumblllllllllle!

A state court judge in Wisconsin has issued a temporary restraining order preventing (at least temporarily) the new law eliminating public sector collective bargaining from taking effect. Wisconsin has become ground zero in a battle between labor and Republicans that will have lasting implications on a national scale.

More than one Cat's paw

Charles Sullivan at Workplace Prof Blog has an excellent post on why Staub v. Proctor Hospital may not be so plaintiff's friendly at all. We agree as our previous post suggests.

Wage payment suit allowed

The Louisiana Third Circuit Court of Appeal has just handed employee plaintiffs a small victory in their wage payment claim. The employees resigned, started a competing business and solicited customers of their former employer. The employer successfully sued the employees in a Texas federal court and were awarded a $1,430,000.00 judgement for damages for breach of fiduciary duty. The employees had filed a claims for unpaid wages and bonuses. After receiving the federal court judgment, the employer filed an exception of res judicata, which was granted by the trial court. The Third Circuit analyzed the record anc concluded res judicata did not bar the employees wage claims.

Saints players react to labor issue

Mike Triplett has a great piece in the Times Picayune about the Saint's players comments on  the breakdown in negotiations for the new CBA. Saint's quarterback Drew Brees is quoted as are many others. The PR war has already started, but these Saints provide an articulate defense to the players position. A word of caution to the fan following this issue. Network reports on the lockout have every reason to be biased in favor of the owners. Not only do they owe the owners $4 billion if the games are not played, they have to negotiate television rights with those same owners. Expect the owners to get better than even treatment and coverage.

Sacked! and the clock runs out

Surprised? I am. Expired collective bargaining agreement, decertification and probable lockout. No disrespect to the tragedy in Japan, but this is a metaphorical tsunami that can well damage all concerned. I think going forward it will be very difficult for the owners in both a court of law and the court of public opinion. The NFL/NFLPA Collective Bargaining Agreement expired because the players would not agree to extend it unless the owners provided the financial information the players had requested. The big sticking point in the negotiations is the owners insistence their costs have risen necessitating taking a second billion off the top of the revenue pie. (The owners want to take $2 billion of the roughly $9 billion in annual revenue generated by the league, before splitting the rest under a formula that provides roughly 60% to player compensation.) Yet the owners are only offering to provide limited access to financial information. This sounds like the typical discovery dispute - one side provides documents requested by the other side and after the production, the requesting party says it needs more. The real issue is hard to assess. Irrespective of the merits of what was produced and whether it was sufficient, I think owners will have a difficult time convincing anyone they provided all the financials the union needed.

Two minute drill

The clock is ticking on the expiration of the extended collective bargaining agreement between the National Football League (NFL) and the National Football League Players Association (NFLPA). Current deadline is tonight at 11:59 p.m. USA Today has an interesting, if bare bones assessment of what could happen. My bet is on another extension. The players have signaled their willingness to talk - there has been no talk of a strike. The owners have rattled the lockout saber thereby assuming the roll of the party willing to walk, but really? This labor/management dispute plays to labor's strengths. Highly skilled athletes bargaining for more. Billionaire owners wanting to increase their guaranteed slice of the estimated 9 billion dollar golden goose that is the NFL. It does not hurt the players position that the owners want a $100% increase in their guaranteed slice off the top. This dispute plays out against the backdrop of the fans. Who will they blame if Sundays from August to February (and a few Mondays, Saturdays and Thursdays too) are devoid of action, or if the only action is by replacement players? I think thats an easy call if the owners lockout the players. Nevertheless a lockout has the same potential economic consequences for the players as a strike, and they are all adverse. No pay, no benefits, and potentially a lost season for players who have precious few years to play anyway. The owners should be gleeful the players threaten to decertify the union (actually a disclaimer of interest that would lead to decertification). It allows the owners to back off the lockout position and continue negotiations, at least at this point. Decertification likely will likely place all of this in a courtroom, a consequence which should be feared more by the defendant, because the teams, as defendants in an antitrust action have a potential dreadful downside. I think the owners should be very concerned about American Needle v. NFL, which rejected the owners argument that the league by necessity had to act jointly in marketing decisions. Yeah, that may be a simplistic analysis, but the case firmly rejected the NFL's broad interpretation of the anti-trust exemption.

Federalizing Right to Work

Senator Jim DeMint has introduced national right to work legislation which would outlaw compulsory unionism on a national basis rather than leaving the issue up to the states. It is co-sponsored by seven other Republican senators, including our own David Vitter. I cannot help but think that this is essentially an anti-state's rights initiative. If you read the press releases it almost seems like the legislation would allow voluntary unionism without need of establishing majority status, but that surely is not the case, rather just the public relations face.

Walker's approval dives over assault on public employee unions

Wisconsin Governor Scott Walker now has a 57% disapproval rate, according to a new Rasmussen poll. 48% strongly disapprove. Yikes! Among families with children in public school 67% disapprove, 54% strongly so.

Unemployment drops to lowest level in almost 2 years

The Bureau of Labor Statistics (BLS) monthly employment report notes joblessness declined to 8.9% in February, with a net job creation of 192,000 jobs despite heavy cuts in state and local government employment due to state budget shortfalls. The WaPo story is here.

Making sense of polls

A new NBC/Wall Street Journal Poll finds 62% of Americans strongly oppose stripping public employees of the right to collective bargaining while at the same time even larger percentages think public employees should contribute more to their retirement benefits (68%) and pay more for their healthcare (63%). By a whopping 77% those surveyed believed public sector union members should have the same rights as private sector union members. To me, none of this is surprising or even incongruous. More after the jump

Cat's Paw approved by SCOTUS

The Supreme Court has decided that the "cat's paw" theory is applicable in at least some employment cases. The theory relates to the situation where a decision maker without discriminatory animus is affected by the advice of others who have discriminatory animus. The case involved allegations of discrimination against an army reservist who claimed his immediate supervisor fabricated a disciplinary warning due to hostility to his military obligations. The employer's vice president of human resources received a report on the disciplinary warning, reviewed the employee's personnel file and terminated the employee's employment. More after the jump

New Labor Media

Would the Wisconsin demonstrations have happened without social media? Probably, but with it the event is more dynamic and dramatic. New Labor Media gets it correct.

Public or private: Who is paid more?

An interesting new study from the self-proclaimed non-partisan Center on Budget and Policy Priorities suggests the answer is complicated.

Mums the good word

Looks like the NFL/NFLPA mediation is getting serious. Here is the statement from the mediator. Also now he says we ain't commenting anymore. Sounds like progress otherwise everybody would be posturing talking.

mo' protests

Not only Wisconsin, but in many other places, support for Wisconsin collective bargaining rights exists. And for a little humor at Gov. Walker's expense, take a look at the 100 best protest signs.

Survey says?

A new USAToday/Gallup poll finds 61% oppose taking away public sector employees collective bargaining rights.

More from Cheeseland and beyond

Here's another interesting post (pro-labor) about the Wisconsin protests. Randy Shaw's take is less positive, and starkly critical of the current administration fumbling the mandate of 2008. While another pro-labor site Labornotes reports on public sector labor unrest in Indiana and Ohio. And the Newspaper Guild notes a broadening nationwide awakening, and a funny graphic.

Wisconsin demonstrates

Chris Bowers at Daily Kos has a detailed piece with video about the remarkable demonstrations ongoing in Wisconsin as Governor Walker continues to target public sector unions. Of course its favorable to labor . . .

Healthcare worker religious objection rules recinded

The Obama administration has rescinded key parts of federal regulations on "conscience protections" for health workers. The Bush rule was widely seen as a way employees could object to providing a broad range of healthcare services the individual employee found objectionable on personal or religious grounds, and be protected against discipline.

Showdown in union country

Massive protests have erupted in Wisconsin in response to Republican efforts to repeal collective bargaining for public employees. Wisconsin was first in the nation to grant collective bargaining rights (1959) to public sector employees. Not something you will see in this part of the world.

NFL accuses union of failing to bargain in good faith

In a move that seems more designed to curry favor with fans and the media, the National Football League (NFL) has filed refusal to bargain charges against the National Football League Players Association (NFLPA). The charges are largely directed at the players threat and authorization to decertify (disband) the union, which likely would bring into play antitrust claims against the owners if they choose to lock out the players. There is an antitrust exemption for collective bargaining, but if the union goes away, so does the reason supporting the exemption. The players have decertified the union before, and that resulted in free agency and the salary cap which were created to settle earlier antitrust litigation. This is another volley in the public relations battle for fan support. While one observer claims the owners will win the PR battle, I'm not a believer. In fact I think his argument that things will get too complicated for fans to sort out works in favor of the players. If the owners lock the players out, you can expect the anti-labor noise machine to crank up full volume in support of the owners, but the simple issue for fans will be the owners created the problem.

NFL and Labor

Here's one writer's take on the NFL labor dispute as it relates to labor's status in the country.

Union busting disclosure

Former union organizer Mike Elk has a post at In these Times about proposed DoL changes to employer's reporting requirements when they engage union busters. The big targeted change? Requiring employers to fill out detailed disclosures of expenses for union busters, including law firms. Under current rules legal advice is exempt from the reporting requirements as long as the law firm does not directly engage in persuading employees (persuader activity) to reject unionization.

There is no free lunch

Well, thats the conventional wisdom, but there are some compelling reasons why certain employers can benefit from providing lunch for employees. Take a look at this post on the I Need a Job Blog. There is another idea in this vein, albeit more defensive. Employers with a large hourly workforce don't necessarily need to provide lunch, but by paying employees for their half hour lunch break, they can avoid wage hour claims for not providing the uninterrupted time off, and prevent the nit-picking overtime claims for employees working a bit beyond their scheduled 40 hours.

Productivity/compensation gap

There is a new essay detailing the gains in productivity outpacing the gains in compensation. No surprise the trend has accelerated since about 1970.

NLRB launches new web site

The NLRB has launched a revamped web site. The new site retains the old resources which made it one of the more useful cyber venues for practitioners, employers and employees. Now though it has a modern feel and easier navigation as well as new case tracking functionality.

Facebook as protected concerted activity

You see occasional news references for applicants and employees getting in trouble with employers for things posted on social media. The NLRB recently issued a complaint against an employer who disciplined an employee for for posting negative comments about a supervisor on her Facebook page. The NLRA protects employees who discuss the terms and conditions of their employment with co-workers and others. The NLRB just announced the case has settled and the employer has agreed to revise their social media and internet policies revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers. Employers should review these policies to ensure there is not a problem like this which could result in a legal challenge.

Unemployment drops to 9%

An unexpectedly large drop in unemployment (9.4% to 9%) occurred in January, but only 36,000 jobs were created. Full report from the Bureau of Labor Statistics (BLS) is here.

Suggestions?

Ezra Kline has an interesting analysis of options to curtail the decline of the middle class. His suggestion: invest in education, particularly in community colleges.  And the New York Times has a story about permanent unemployment at age 50. Happy Friday!

Speechless

The IAM has sued the Governor of South Carolina claiming anti-union remarks made by her were designed to intimidate workers into not joining a union. Interesting. The Attorney General claims the comments were made before the Governor took office, and in any event were protected by the First Amendment. This story harkens back to a previous post.