The Louisiana Employment Law Blog

Really? No Really!

2012-02-12T11:47:00.000-08:00

Federal Judge Lynn N. Hughes in the Southern District of Texas has granted summary judgement against the EEOC in a case where the Commission claimed an employee was fired because she wanted to pump breast milk for her new born at work. Title VII prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. In EEOC v. Houston Funding II, Ltd, Judge Hughes joins several other district courts in finding "[f]iring someone because of lactation or breast pumping is not sex discrimination . . . the law does not punish lactation discrimination." One can understand the logic that lactation discrimination is not pregnancy or child birth discrimination, but isn't a a medical condition related thereto?

Hill Does Lafe

2012-02-07T13:58:00.000-08:00

The Hill has an interesting piece on NLRB General Counsel Lafe Solomon and his handling of the Boeing case.

Arbitration rejected

2012-02-03T07:17:00.001-08:00

In Carey v. 24 Hour Fitness USA, Inc., the Fifth Circuit affirmed a trial court refusal to order arbitration of a FLSA claim because the employer retained the right to modify the arbitration agreement retroactively.

Unemployment drops to 8.3%

2012-02-03T06:29:00.001-08:00

The Bureau of Labor Statistics (BLS) released its January jobs report this morning, and the news is BTE. Private sector jobs grew by 257,000 but declines in public sector employment reduced the non-farm payroll employment gain to 243,000. The report also adjusted upward the gains reported for November and December 2011.

IBEW wins at GE

2012-02-02T08:54:00.001-08:00

Daily Kos has an interesting piece from the union perspective about the IBEW's first win at a General Electric plant in 10 years. Short take - broken promises.

Indiana passes right to work

2012-02-01T20:47:00.001-08:00

Indiana is now a right to work state. The real question is "what does that mean?"

EEOC reports FY 2011 activity

2012-02-01T05:00:00.001-08:00

The Equal Employment Opportunity Commission (EEOC) has released its 2011 activity report. Highlights: Record number of charges filed (99,947), resolutions (112,499) and almost a half billion dollars in financial relief. Detailed statistics can be found here.

AZ to WS public sector bargaining

2012-01-31T16:27:00.001-08:00

Will Arizona become the next public sector collective bargaining hot spot.

Rats, coffins and Grim Reapers

2012-01-28T10:15:00.001-08:00

The Tampa Bay Times has a good overview of union "signage" used to protest employers not using union construction.

Union density static

2012-01-28T09:46:00.001-08:00

The Bureau of Labor Statistics (BLS) has released its 2011 union members summary which indicates 11.8% of wage and salary workers are union members. This is down slightly from 2010's 11.9% rate. Louisiana is one of 7 states with union membership under 5%. How concentrated is union membership? Note this quote

Over half of the 14.8 million union members in the U.S. lived in just seven states (California, 2.4 million; New York, 1.9 million; Illinois, 0.9 million; Pennsylvania, 0.8 million; Michigan 0.7 million; and New Jersey and Ohio, 0.6 million each), though these states accounted for only about one-third of wage and salary employment nationally.

NLRB GC updates social media report

2012-01-26T06:11:00.000-08:00

Acting NLRB General Counsel Lafe Soloman has updated his report on Social Media (January 24, 2012). The report can be accessed here. Our previous post is here.

Louisiana job growth

2012-01-25T06:04:00.001-08:00

Good news on state and local unemployment and job creation. The Bureau of Labor statistics (BLS) reported that the state's seasonally adjusted jobless rate dropped to 6.8% in December. Thats down from 7.7% in December 2010. The Louisiana Workforce Commission announced December marked the 15th consecutive month the state added private sector jobs. Statewide job growth in 2011 was 48,300.

Jobs and Job Creators

2012-01-24T14:24:00.001-08:00

Job creation in 2011 stacks up favorably to job creation since 2001. From ThinkProgress:

Since the last SOTU, the economy has created 1.9 million private sector jobs.
Private sector job creation under Obama in 2011 was larger than seven out of the eight years Bush was president.

When lawyers sue lawyers

2012-01-24T10:41:00.000-08:00

Well, this one is interesting. According to the Boston Business Journal, two attorneys have sued their former employer's managing partner because he had an affair with one of the partner's wives (who is also a firm partner). The second plaintiff sued because he had to leave the firm because he lost clients that were inextricably linked to the other departing partner. The law suit claims breach of fiduciary duty.

Fake Penis Termination

2012-01-24T08:10:00.000-08:00

A woman working for a frozen snack food company was considering a sex change and wore a fake penis to work. She told her co-workers. She was fired, and now claims in a discrimination law suit it was for wearing the fake penis.

Lockout!

2012-01-23T08:42:00.001-08:00

The New York Times has a good article about why employers are using lockouts more aggressively. This once rare tactic is gaining favor and its not because the NFL and NBA used it.

NLRB strikes down presumption of wall to wall bargaining units

2012-01-23T06:00:00.001-08:00

The National Labor Relations Board has extended its Specialty Healthcare (download here) bargaining unit rationale to a non-healthcare setting. In DTG Operations, Inc. (download here) the union petitioned for a unit of 31 rental service agents (RSA's) and lead agents (LRSA's) at an airport rental car facility. The Regional Director found the smallest appropriate unit was a "wall-to-wall" unit of "all 109 of employer's hourly employees." Because the union refused to go forward in the smaller unit, the RD dismissed the petition. In reversing the RD, the Board found the RSA's and the LRSA's shared a community of interests among themselves, but do not share an "overwhelming community of interests with the other hourly employees. This decision likely means the current Board will permit elections in small units which historically would not have been appropriate for collective bargaining. A labor organization can engage in piece-meal organizing, picking and choosing small groups of employees rather than undertaking an overall facility-wide effort. Advantage organized labor.

His "O-ness" sings

2012-01-20T07:58:00.001-08:00

Is it just me, or does it seem like President Obama, after shouting out to his "great friends in organized labor," disses them singing Aretha Franklin?

SOPA support crosses political divide

2012-01-18T09:28:00.001-08:00

Its hard to find something the United States Chamber of Commerce and major unions both endorse. But The STOP Online Piracy Act (SOPA) is it. It still does not make the legislation a good idea.

Policy Review?

2012-01-12T06:59:00.000-08:00

January is an excellent time for employers to review their handbooks for compliance with changes in the law, changes to employee benefits plans and workplace changes (including technology) that may require some policy tweaking. A few suggestions: social media policies, computer/smart phone use policies, brush up on no access rules under the NLRA as well as review policies to ensure they do not constitute per se violations (Think protected concerted activity under the NLRA).

Activist NLRB

2012-01-09T08:27:00.000-08:00

Remember AT&T Mobility v. Concepcion? Many thought the decision would lead many employers to adopt arbitration requirements that would prevent employees from pursuing class or collective employment claims. Last June we posted on the NLRB's request for briefs concerning compelled waiver of class arbitrations. The NLRB has ruled and its good news for employees. Employers who try to compel employees to waive all rights to a judicial forum for employment disputes violate the NLRA if the arbitration agreement also prohibits group, collective or class arbitrations. The NLRB finds collective pursuit of such claims to be protected concerted activity. While employers may impose a requirement that individual claims must be arbitrated as individual claims, they may not also prevent employees from pursuing group claims in a judicial forum. The decision, D.B. Horton, Inc. may be downloaded here.

Economy gains 200,000 jobs

2012-01-06T06:26:00.000-08:00

The Bureau of Labor Statistics (BLS) issued its report on December jobs creation today. The nonfarm payroll employment added a net gain of 200,000 jobs. The unemployment rate fell to 8.5% (from 8.7% in November).

Rumor has it

2012-01-04T12:34:00.001-08:00

President Obama will make recess appointments to the NLRB. As a preemptive comment on the political fall out of this decision, we note that the President's Republican predecessor made 7 recess appointments to the NLRB.

Weirder? Yep, Dead Horse, maybe.

2012-01-02T06:37:00.000-08:00

Seems some South Carolina Boeing employees have filed a "retaliation" charge against the Machinists' union because they used the NLRB process to bully Boeing into locating the 737 Max production line in Washington State. Through collective bargaining Boeing and the union reached a 4 year agreement which included assurances that the 737 Max line would be built in Washington, and also included a resolution of the 787 Dreamliner case which ensured that contested work relocation would remain in South Carolina. The employees were assisted by the National Right to Work Legal Defense Foundation. I wouldn't bet the farm on a complaint issuing on this charge.

Oh Boy!

2011-12-31T12:01:00.000-08:00

After a long history of rejection, a plaintiff has prevailed in the Eleventh Circuit, in part because the Court did not again reject, as not probative of discrimination, that a white supervisor referred to him as "boy." We have previously posted about this case here.

Recess NLRB appointments

2011-12-29T01:17:00.000-08:00

The Hill has a good post on the potential of recess appointments to the NLRB. Unless the Senate acts to confirm the three pending nominations (it wont), the NLEB will only have 2 members at the end of the year. All 47 Republican Senators have sent a letter to the President asking him to reject recess appointments. Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits notes, "I doubt the president would go forward because it would poison the well in the Senate.”

Shhhhhhhhh! Can't say that

2011-12-26T07:35:00.000-08:00

Vaughan v. Woodforest Bank (5th Cir. 12/21/11) is an interesting case where a white branch manager was terminated by her white supervisor for "unsatisfactory performance" and comments allegedly made which had a racial component. The supervisor testified that “we cannot talk about race in the workplace” and that “if you talk about race in the workplace it’s racial discrimination.” She also elaborated on Vaughn’s “unsatisfactory conduct,” stating that there were three “racial” occurrences that formed the basis of her decision to fire Vaughn. The Court does a good job of deconstructing the comments and explaining why the employee has created a sufficient factual dispute to avoid summary judgment. To me though the unstated rationale is the Court's conclusion no minority employee would have been terminated for the reasons proffered.

NLRA Poster deadline postponed

2011-12-23T22:32:00.000-08:00

Effective today, the NLRB has postponed the effective date for employers posting the required notification of employee rights under the National Labor Relations Act.

USCC v. NLRB

2011-12-21T08:06:00.001-08:00

The U. S. Chamber of Commerce has sued the National Labor Relations Board to prevent implementation of the revised rules for conducting union elections. The complaint is here.

Dangers of a nonfunctioning NLRB

2011-12-17T08:46:00.001-08:00

Former NLRB Chairman William B. Gould, IV (1994-98) penned this op-ed piece in the New York Times concerning the effect a non-functioning NLRB on wokrers' rights. Gould among other things,urges the President to make it an election year issue.

Work stoppage may be unprotected

2011-12-16T05:49:00.000-08:00

The DC Circuit in Fortuna Enterprises has refused to enforce a portion of an NLRB order finding the employer's suspension of employees who engaged in concerted activity by refusing to work until management addressed a complaint about discipline of another worker who engaged in organizing activities. The employees were hotel service staff who gathered in a company cafeteria and insisted upon meeting with management about the discipline. After being told to return to work or leave the premises several times during a 90 minute wait, the employees were suspended for insubordination. In finding a violation the Board concluded the employees had no procedure whereby they could present a group grievance, and that their gathering to complain was protected. The D.C. Circuit rejected the Board's finding on the employer's complaint procedure finding the employer's practice was to permit group complaints, and that the policy did not exclude such complaints. For these reasons the Court remanded the case to the NLRB for consideration in light o the ruling on review.

UAW agenda

2011-12-13T10:54:00.000-08:00

Will Canton Mississippi's Nissan plant be the next target in the UAW's drive to organize foreign automakers' plants in the U.S? This USA Today article suggests it will.

Boeing resolved

2011-12-10T08:20:00.001-08:00

The much debated "controversial" Boeing unfair labor practice case concerning the relocation of work to South Carolina has been formally settled. While some suggest the result is due to "pressure", it is unlikely pressure from the right, as The Hill post suggests, contributed to the resolution. Acting General Counsel Solomon is closer to correct. The collective bargaining process worked. The company and the union bargained and as a result of the bargaining, the union requested the relocation charge be withdrawn. Thats the way collective bargaining should work. Unions are free to bargain away ULP's, particularly where there is no identifiable individual discriminatee.

Pretext due to employer not following its policies

2011-12-09T06:11:00.001-08:00

I have long felt that employers who lack organization and sophistication in promulgating, maintaining, enforcing and revising written policies should consider having no written policies at all. A live and credible witness can explain why the decision adversely affecting a claimant is based on legitimate business related criteria. That can be enough for summary judgment. But when this explanation is in conflict with or contradicts employer's written policies, a material fact dispute likely exists. In Norris v. City of Millbrook, a federal district court in Alabama agrees. Money quote after the jump

Furthermore, Plaintiff points out that Defendant's documentation regarding her demotion is potentially suspect. All of the negative performance memoranda regarding Plaintiff was created on or after May 13, 2010, a mere eight days prior to the adverse employment action.[7] The lack of documentation at the time of the supposed incidents of misconduct indicates, at the very least, that Defendant failed to follow its own misconduct procedures. See Young v. Dillon Cos., Inc., 468 F.3d 1243, 1252 (10th Cir. 2006) (stating that "evidence suggesting, inter alia, that the defendant fabricated documentation relating to the [adverse employment action] and failed to follow its own written . . . procedures" is relevant to plaintiff's showing of pretext). While the timing of such documentation "does not lead to the automatic conclusion" that Plaintiff's demotion was because of her age, it does support an "`inference' that Defendant might be `cover[ing] up a discriminatory purpose.'" Ashe v. Aronov Homes, Inc., 354 F. Supp. 2d 1251, 1261 (M.D. Ala. 2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).

Transsexual protected against discrimination

2011-12-08T02:39:00.001-08:00

The 11th Circuit has affirmed summary judgment in favor of a transexual employee who was terminated from her public sector job. The Defendant "testified that his decision to dismiss Glenn was based on his perception of Glenn as 'a man dressed as a woman and made up as a woman,' and [Defendant] admitted that his decision to fire Glenn was based on 'the sheer fact of the transition.' [Defendant's] testimony provides ample direct evidence to support the district court’s conclusion that [Defendant] acted on the basis of Glenn’s gender non-conformity. Although he case was brought as a constitutional equal protection claim the court acknowledged the underlying rationale would apply in a Title VII context.

A contrary view

2011-12-08T01:57:00.001-08:00

CCH WorkDay Blog reviews a compendium of reports and studies challenging the notion that public sector employees are huge contributors to the country's economic problems.

Remember Andy Stern?

2011-12-06T16:12:00.000-08:00

Former President of the SEIU and bad boy poster child (and pinata) of the anti union crowd, now works for Big Pharma. He's profiled in this piece at BeyondChron, which portrays him as a big fan of China's explosive state driven growth there, a blamer who notes the time of free markets is over, and by implication a tacit supporter of repressive working conditions. Go figure.

Unemployment drops to 8.6%

2011-12-02T06:22:00.001-08:00

The Bureau of Labor Statistics (BLS) unemployment report released today indicates 120,000 jobs were added last month. The unemployment rate dropped also to 8.6%. BLS also revised upward the job growth in October by 72,000 jobs. This is the 4th month in a row the report as revised job growth upward over the initial estimate.

Boeing settled?

2011-12-01T04:40:00.001-08:00

The Seattle Times is reporting Boeing and the Machinists' union have reached a tentative agreement on a 4 year deal that will secure Washington state as the location of the company's fabrication of the 737MAX. The agreement purportedly includes a resolution of the unfair labor practice complaint issued over the relocation of part of the 787 fabrication to South Carolina. Previous posts here and here. The NLRB case has become a volatile political issue. Although NLRB Acting General Counsel Lafe Solomon must approve any settlement of the case, it is unlikely the NLRB will stand in the way of a settlement pushed by the IAM. Supporters of the Company's relocation of work to South Carolina should also be happy as the fabrication facility there will continue operations if the settlement is ratified by the union membership and approved by Solomon.

NLRB adopts some new election rules

2011-11-30T15:20:00.001-08:00

By a 2 -1 vote the NLRB adopted new rules for the election process. This is a less than sweeping change, and only addresses a few issues set out in the previous post.

NLRB election revisions released

2011-11-30T02:53:00.001-08:00

The NLRB is scheduled to vote today on a partial set of proposed revisions to the way in which the NLRB conducts representation elections which determine whether a union represents a majority of the employees in a unit appropriate for collective bargaining. The NLRB explanation of the proposal is here. The proposals under consideration today appear to be a modest, partial list. If passed the proposals will be drafted into final regulations. These proposals limits the issues which may be raised at the hearing and makes the right to brief the issues contingent upon the hearing officer determining briefing is necessary. Given the modest nature of these proposals, its unlikely Member Hayes will express his opposition in a dramatic way.

Basketball for Christmas

2011-11-26T05:50:00.001-08:00

It appears the owners and players have reached a tentative agreement which may have the NBA playing by Christmas.

Dysfunction at the NLRB

2011-11-25T07:31:00.001-08:00

Steve Greenhouse, in the New York Times (registration required), has a good overview on the partisan infighting at the NLRB. The 2 Democrats are pushing for an approval vote on new rules for conducting representation elections. Republican Member Hayes opposes the rules and claims he has been locked out of the process of formulating them. It is unclear whether Hayes has been excluded or has refused to participate. What is clear is Member Hayes could resign before the vote and deprive the two remaining Board Members from having the necessary 3 member quorum to conduct business. It is increasingly likely no new Board Members will be confirmed until after the 2012 elections. Member Becker's interim appointment expires when Congress adjourns at the end of the year. Republicans are already prepared to stay in session to prevent any recess appointments.

No strike for baseball

2011-11-23T06:16:00.001-08:00

Owners and players representatives inked a 5 year collective bargaining agreement virtually assuring labor peace in the sport through 2016. The agreement still has to be ratified but faces no serious threat in that process.

Will Republicans shut down the NLRB?

2011-11-22T04:17:00.001-08:00

We know after New Process Steel the NLRB has to have 3 members to have a quorum. We also know Member Becker's recess appointment expires when Congress adjourns at the end of the year. Unless there is a confirmation or another recess appointment the NLRB will only have 2 members when Becker's appointment expires. Now some Republicans are urging Member Hayes to resign before the Board can implement controversial changes to the election process used to determine whether workers can unionize their employer's workplace. I think it is very likely Congressional gridlock will prevent the NLRB from having a quorum until some point after the 2012 election.

Trumka and popular economics?

2011-11-22T03:59:00.001-08:00

Esquire has a piece on "Man of the Year" Richard Trumka. The article contains a full serving of economic populism.

Union organizer pines for EFCA

2011-11-22T03:49:00.001-08:00

This account of a California organizing attempt has not turned out well for one of the employees involved.

New election rules imminent?

2011-11-19T06:25:00.001-08:00

The NLRB has issued a press release setting a November 30th vote on some portion of the new rules proposed for conducting NLRB elections. Is this a "ram through" of quickie elections before Member Becker's interim appointment expires? Maybe.

OWS messaging and labor

2011-11-16T07:02:00.001-08:00

Steve Early's post at BeyondChron does a great job of explaining why the Occupy Wall Street message resonates and big labor's message about the middle class does not.

NLRB Poster about employee rights

2011-11-15T08:45:00.001-08:00

Here is a lighthearted video on the NLRB's requirement employers post a notice advising employees of their rights under the National Labor Relations's Act.

Who owns the Twitter account?

2011-11-15T08:31:00.001-08:00

Who owns that Twitter account? There have been a number of posts, here, here and here concerning "ownership" of a departing employees Twitter account. Litigation was inevitable. For a discussion of the legal theories which survived a motion to dismiss go here.

NBA season jeopardized

2011-11-14T13:12:00.001-08:00

NBA/NBPA talks are going badly. Players reject owners last offer, and the union plans a disclaimer of interest (not decertification). Point being the players want to play the antitrust card. One certainty among much uncertainty. Chances for any NBA season have diminished.

Social media survey has surprising results

2011-11-14T07:10:00.001-08:00

Cisco surveyed college students and recently employed college graduates about the importance of internet access, social media use and access to mobile devices at work. The results should give pause to employers considering drastic policies curtailing use. Bottom line finding is a company's policies may affect job choice even more than salary. The findings are astonishing.

68% of employees and 71% of college students believe corporate devices should be used for social media and personal use
80% of college students want to choose their device
More than two of five would accept a lower-paying job that had more flexibility with regard to device choice, social media access, and mobility than a higher-paying job with less flexibility.
50% of college students say they would rather lose their wallet or purse than their smart phone or mobile device
7 out of 10 students believe being regularly in an office is necessary
Many respondents cite a mobile device as “the most important technology” in their lives
Seven of 10 employees have “friended” their managers and coworkers on Facebook
Two of five students have not bought a physical book (except textbooks) in two years
two-thirds would choose the internet over a car
one in three say the internet is as important as food, water and air.

Rather than focusing on an employer's legal right to control employees, some employers may derive substantial benefits if company policies permit employees internet access, social media use and mobile device use at work.

Ohio Right to Work attept announced

2011-11-13T08:53:00.001-08:00

Despite the rebuke Ohio voters gave to Gov. Kasich's effort to restrict public sector collective bargaining, a conservative group with Tea Party roots has announced its intent to try to make Ohio a right to work state through a 2012 ballot initiative.

Preparation for 2 Member NLRB

2011-11-09T08:31:00.001-08:00

The NLRB has delegated its authority to the General Counsel to act

full authority over court litigation matters that otherwise would require Board authorization and full authority to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act, sections 206–210, 29 U.S.C. 176–180. These delegations shall become effective during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.

This action is taken due to the likelihood the NLRB will have only 2 members when the recess appointment of Member Becker expires.

Rejected

2011-11-09T04:50:00.001-08:00

Ohio Governor John Kasich made passage of Senate Bill 5 (his signature law restricting public sector employees collective bargaining rights and the right to strike) his first priority after the Republican sweep in the 2010 elections. The reaction by labor and its allies has been swift and overwhelming. They gathered almost a million signatures to place a referendum on the ballot. Yesterday the repeal referendum (in which a yes vote was a vote for SB 5) was defeated resoundingly.

Are government workers overpaid?

2011-11-08T07:28:00.001-08:00

While some politicians argue public sector employees are overpaid, a new study from the Bureau of Labor Statistics indicates the opposite. Conservatives challenge the BLS conclusions with a Heritage Foundation study. Progressive blog ThinkProgress counters with a Project on Government Oversight (POGO) report which criticizes the Heritage Foundation methodology.

Unemployment trends down slightly

2011-11-04T05:49:00.001-07:00

The Bureau of Labor Statistics (BLS) October jobs report reflects unemployment slipped to 9.0% down from 9.1 the previous month. Private sector employment grew by 104,000 and government employment losses (24,000) partially offset the private sector gains

Po'boy feeds strike

2011-11-03T08:11:00.000-07:00

Today the Times Picayune reminds us a 1929 streetcar strike is credited as the birth time of the iconic po'boy sandwich. More about the origins here.

Boeing case delayed

2011-11-03T04:34:00.001-07:00

The high-profile unfair labor practices case against Boeing is stalled pending federal court enforcement of NLRB subpoenas to the company for documents. It is unlikely the case will be resolved before the end of 2011. At that point, it is likely the NLRB will no longer have a quorum of 3 members. Member Becker's recess appointment ends in December. Congressional Republicans are likely to filibuster any appointments thereby preventing the Board from having the third member necessary to function. A recess appointment is a possibility, but that requires a recess, something republicans have avoided by keeping Congress in session. Previous posts here.

Responding to allegations of harassment

2011-11-02T07:35:00.000-07:00

Anytime a business has to address accusations of sexual harassment the response to the accusation is critical. Prompt remedial action can often avoid liability. Thats sex harassment 101. When a politician is accused of harassment, the response can be more complex. Herman Cain is learning that lesson in real time. More after the jump

Mr. Cain has, to date, responded with a less than consistent approach which has kept the issue churning, usually not a positive thing for the politician. He certainly has defenders claiming him to be a victim of a "high tech lynching." But the killer fact for most is the reported settlement reached by his employer with one of the accusers. From the New York Times article linked above:

One former colleague familiar with the details said such a severance was not common, especially for an employee with the woman’s relatively short tenure and her pay grade.

The situation highlights some policy concerns about confidentiality agreements and who is bound not to disclose what. In the normal case the only party restricted by confidentiality is the employee claiming harassment occurred, who receives valuable consideration ($$$$$) to resolve the claim and remain silent. But when the settlement is a nuisance value settlement on weak or disputed facts, there is a real argument the confidentiality agreement can have the unintended effect of making the controversy loom larger in the public's mind. A $5,000, settlement of a disputed claim may well be a business decision to avoid defending an unmeritorious law suit. The claimant, however, prevented from disclosing the settlement details may just smile and say the matter was resolved, leaving the amount of resolution to the mind of the third party hearing the remarks. Sometimes it is better for an employer not to insist on confidentiality.

Basketball (not anytime soon)

2011-11-02T07:11:00.001-07:00

The NBA lockout has already resulted in cancellation of the first month of games. For now, it looks like the fans, owners and players are losers, but the lawyers are not.

Situational harassment

2011-10-31T08:50:00.001-07:00

A liberal blogger she makes this interesting point about allegations of sexual harassment by a politician.

Separating employment (with music)

2011-10-28T07:31:00.000-07:00

Some "I quits" are memorable, this one is up at a new level. The action starts around a minute 40.

National Economy grows to tread water state

2011-10-27T07:41:00.000-07:00

In a mild surprise third quarter growth in the U.S. GDP reached 2.5%, almost doubling second quarter growth, according to the Commerce Department. In Louisiana job growth continues with the New Orleans area adding almost 11,000 jobs between September 2010 and September 2011. The metro area unemployment rate in September was 6.9%.

Yin and yang?

2011-10-26T09:27:00.000-07:00

Just as the Department of Labor is about to impose onerous disclosure requirements on attorneys and consultants who advise employers concerning labor relations (previous posts here), the same DoL is easing the disclosure requirements on labor.

Ohio collective bargaining law jeopardized

2011-10-25T08:53:00.001-07:00

This fall's election cycle has little of note (unless you think Gov. Jindal's 66% win is underwhelming against a field of under financed, under knowns). There is one contest in Ohio, however, that is worth noting. Its the attempt to undo Gov. Kasich's limits on collective bargaining rights for public employees in the state. Current polling has the repeal forces optimistic. This election is seen as a harbinger of the 2012 presidential race in a crucial state.

Career advice for Women

2011-10-25T06:39:00.001-07:00

There is a really interesting post at Harvard Business Review entitled "Four Ways Women Stunt Their Careers Unintentionally." The post itself makes some valid points, but the comments are well worth a full read. Essentially the post says women hurt themselves by (1) being overly modest about their accomplishments, (2) not asking for promotions (3) blending in to avoid attention, and (4) failing to speak out and express opinions. Some of the comments present an insightful rejection of the thesis of the piece. Note for example those of idea15webdesign posted 10/20/2011 06:16 AM

Steve Jobs on unions in education

2011-10-21T17:03:00.000-07:00

Walter Isaacson's Steve Jobs biography relates some pretty negative views Jobs had on public school unions.

"Monkeys!"

2011-10-18T09:01:00.000-07:00

A federal district court in Mississippi has denied summary judgment on a hostile environment claim to an employer who is accused of multiple instances of racially derogatory remarks (calling black employees "monkeys"). Once would have been OK, but not several times.

Conundrum

2011-10-18T07:37:00.001-07:00

Sometimes its hard to tell who is the player and who is getting played. An 8 year employee of Target claims his discharge was because he complained about not receiving uninterrupted breaks. Under federal wage hour laws employees who are called back to duty during a supposed break are entitled to compensation for the break which is interrupted. The federal lawsuit claims retaliation for complaints about breaks being interrupted in this manner is the real motivation for the discharge. The irony is his discharge was ostensibly because he worked through a lunch break off the clock. Many employers have a policy preventing employees from doing just that. The basic reason for the policy is to discourage unauthorized work which may lead to overtime. If the employee works, he is entitled to compensation under the FLSA, even when the work was unauthorized and in violation of company policy. So the employer's remedy is limited to discipline for violating the policy. The employer may not refuse to pay the employee. One interesting fact in this case is the time clock prevented an employee from clocking back in within 30 minutes of clocking out. While one can understand the employers objective, this approach likely will result in the trier of fact assuming the employer's time clock does not accurately reflect time worked

Three law Profs take on Boeing

2011-10-14T09:59:00.000-07:00

Three labor law professors have an op-ed piece in the New York Times. In defense of the NLRB they pose the question in an analogous, but simple way.

Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.

The entire piece is well worth the read. Our previous posts are here.

Birth rate declines with economy

2011-10-14T09:20:00.000-07:00

Pew has a report out about the effect of the Great Recession on the birth rate. While Alaska and North Dakota buck the trend, every other state (map) shows a decline in birth rate since 2007. Mississippi ranks third highest decline (behind Nevada and Idaho). Clicking through to the Pew site brings you to a graph showing just how close the decline in birth rate mirrors the decline in per capita income.

FLSA retaliation claim by applicant dismissed

2011-10-13T09:46:00.000-07:00

The Fourth Circuit, in a divided opinion, holds an applicant for employment who is denied employment after the prospective employer learned that she had sued her former employer under the FLSA is not an employee subject to the anti-retaliation provisions of the FLSA. A strongly worded dissent by Judge King relies upon, Robinson v. Shell Oil Co., a Title VII decision in which the Supreme Court held employers who retaliate against former employees who engaged in protected activity stated a Title VII retaliation claim. In both cases the issue was whether the statute extended protection in a context where the adverse action was taken against a non-employee. Given the Supreme Court's handling of recent retaliation cases, I think this one might get a look-see.

NBA cancels games

2011-10-11T07:30:00.001-07:00

The National Basketball Association lockout continues. NBA Commissioner David Stern has announced the cancellation of the first two weeks of games. With no apparent progress being made the entire basketball season is in jeopardy. The NBA is not the NFL (which was smart enough to compromise without costing any regular season games). The NBA likely will take a huge hit from its decision to lock out players. Fewer people will care both short term and long term as this columnist notes.

Down and down more

2011-10-10T08:19:00.001-07:00

One reason consumers feel so pessimistic may be that income levels have declined more since the recession ended than during the period of recession. This from a study by two former census officials

During the recession, real median annual household income fell by 3.2 percent, from $55,309 in December 2007 to $53,518 in June 2009. During the economic recovery, real median annual household income fell by an additional 6.7 percent, from $53,518 in June 2009 to $49,909 in June 2011.

NLRB R.I.P.?

2011-10-08T11:09:00.000-07:00

A Georgia congressman wants to eliminate the National Labor Relations Board specifically because the Congressman does not like the fact that the Board may find Boeing violated the NLRA. The bill would shift enforcement of unfair labor practice violations to the Justice Department, and processing of representation matters to the Department of Labor. Perhaps this will be a 2012 campaign issue.

Same sex harassment and gender stereotyping

2011-10-08T05:53:00.000-07:00

A new district court opinion out of Mississippi, Moore v. USG Corp., holds, in a same sex harassment context, the Fifth Circuit does not recognize a gender stereotyping theory of liability. The Court limits same sex harassment claims to three recognized models of proof (provided in the Supreme Court's Oncale decision). More after the jump (graphic facts)

"there are two types of evidence that are likely to be especially credible proof that the harasser may be homosexual. The first is evidence suggesting that the harasser intended to have some kind of sexual contact with the plaintiff rather than merely to humiliate him for reasons unrelated to sexual interest.Id. at 480. The second is proof that the alleged harasser made same-sex sexual advances to others, especially to other employees.Id. The Fifth Circuit found that for purposes of surviving summary judgment, the plaintiff had produced both types. He had put forth evidence that his supervisor had walked up to the plaintiff and his girlfriend, and seeing passion marks on the plaintiff‘s neck, stated: I see you got a girl. You know I‘m jealous. Id. at 476. On a later date, the supervisor had fondled the plaintiff‘s anus while the plaintiff was bending down, and the plaintiff immediately turned around and told the supervisor, I don‘t play like that and reported the matter to the employer. Id. The supervisor later that day spit tobacco on the plaintiff‘s hat, which the court found could plausibly have been evidence of the supervisor‘s anger towards the plaintiff for rejecting his sexual advance. Id. at 480. Another coworker had also filed a written complaint against the alleged harasser, alleging that he had asked him to sit on his lap and told him that he had pretty lips and that he could suck dick or suck my dick. Id. at 477."

Law firm as employer

2011-10-07T09:34:00.001-07:00

Even law firms can be sued for discrimination.

Slim job growth in September

2011-10-07T06:06:00.001-07:00

Private sector employers added a meager 137,000 jobs in September, while the public sector continues to shed jobs according to the latest jobs report from the Bureau of Labor Statistics (BLS). The unemployment rate remained at 9.1 percent while the underemployment rate inched up to 16.5% (from 16.2%). Both the July and AUgust estimates were revised upward, but only slightly.

NLRB Notice Requirement Delayed

2011-10-06T07:32:00.001-07:00

The NLRB has postponed until January 31, 2012 the effective date of the new rule requiring employers to post the Notice of NLRA rights. The reason for the delay: "to allow for enhanced education and outreach to employers . . . ."

Buffett on job creation and taxes

2011-10-04T08:08:00.000-07:00

Warren Buffett on taxes and job creation:

"I have worked with investors for 60 years and I have yet to see anyone — not even when capital gains rates were 39.9 percent in 1976-77 — shy away from a sensible investment because of the tax rate on the potential gain. People invest to make money, and potential taxes have never scared them off. And to those who argue that higher rates hurt job creation, I would note that a net of nearly 40 million jobs were added between 1980 and 2000. You know what’s happened since then: lower tax rates and far lower job creation."

Seems that as long as the discussion is diverted by illogical assumptions, the problem will continue.

A National Right to Work Law?

2011-09-29T05:24:00.001-07:00

Senator Jim DeMint (R SC) has proposed passing a national right to work law. Texas Governor Rick Perry and former Massachusetts Governor Mitt Romney have said they both support it. This is, of course, a reaction to the Boeing case where the NLRB has issued a complaint against the company for building a second Dreamliner production line in South Carolina allegedly because the Machinists' union engaged in strikes in Washington State where the company had announced the expansion would be located. For a small government Party, the Republicans are awful quick to federalize certain issues which advance their agenda. Unions do the same thing (see EFCA). Under current law, states have the right to choose whether they permit an agency shop or not. An agency shop is one where a company and a union can agree that the employees are required to join the union. Federal law also says such arrangements cannot require actual membership in a union, only that an objecting worker pay partial dues attributable to the unions collective bargaining services. In the 22 right to work states, unions and employers are not permitted to require union membership, or any payment in lieu thereof, as a condition of employment.

NOLA unemployment better

2011-09-28T09:56:00.000-07:00

Unemployment has drifted downward locally and statewide. While there is no job boom, things are better here then elsewhere. Article and charts here.

Young Workers Summit

2011-09-27T04:13:00.001-07:00

Next week the AFL-CIO will host a Young Workers Summit in Minneapolis. Labor Secretary Hilda Solis will participate. AFL-CIO President Richard Trumka has made no secret of his priority of recruiting and involving younger workers.

Unintended Consequences

2011-09-26T08:29:00.000-07:00

Steve Greenhouse writes in the New York Times (registration required) that last year's Citizen's United opinion has liberated unions from campaign reform restrictions and the result is reinvigorated outreach efforts. Money quote:

Before the Citizens United ruling, unions were banned from using dues money to reach out to nonmembers in political campaigns, but now unions plan to campaign among the 89 percent of Americans who do not belong to unions. Union officials have long complained that when their foot soldiers knocked on doors in, say, Milwaukee or Columbus, Ohio, they wasted huge amounts of time because they could visit only union members’ homes and often had to skip 90 percent of the houses. Now they can knock on every door on a block.

Persuader regulations opposed

2011-09-22T15:56:00.000-07:00

The American Bar Association and the Chamber of Commerce of the United States have both filed comments with the Labor Department on the proposed revisions of the “persuader” regulations requiring extensive reporting of client confidential information when an attorney or firm provides advice to employers on labor relations matters. These persuader rules are a far more important issue than the required notice posting that has gotten so much coverage. These rules, if adopted, will make it impossible for a law firm to preserve client confidential information and be in compliance with the reporting and disclosure requirements.

Worst job creation decade

2011-09-22T07:50:00.000-07:00

Its now official, the first decade of the 22nd century has been an economic disaster for many Americans. Earnings for middle class Americans have been been lagging since the 1970's, but since 2000, income has actually declined while inflation adjusted prices have risen. The Economic Policy Institute (EPI) has a more detailed report. Despite the lowest tax rates in 50 years, the United States is hemorrhaging good jobs, and the rate of job creation (any job creation) lags the loss. Where are the job creators? Over taxed they are not. Over regulated? Perhaps, but I tend to think job creation originates with demand. The engine for demand is the 95% of the population that either has nothing to spend or is too scared to spend it. A millionaire tax is too little to erase the deficit, and correspondingly, lowering taxes (again) for millionaires wont liberate job creators sufficient to make a dent in unemployment.

Hating Arbitration

2011-09-20T08:13:00.001-07:00

Some attorneys really do not like the Supreme Court's direction on compelling arbitration of employment disputes. Check out "Separate but Unequal" from Cliff Palefsky. To give you an idea of the content, here's a money quote: "Mandatory arbitration is a cancer in our justice system based on a phony public policy and legal and factual fictions."

Bad Boss Monday

2011-09-19T05:57:00.001-07:00

Working America, which is an affiliate of the AFL-CIO, recently sponsored a bad boss contest. Some of the winners are described here. Its enough to make you appreciate your own superior's eccentricities, well, maybe not. Its not surprising that a labor affiliate would sponsor this contest. The number one reason employees seek out union representation - mistreatment by their boss. Not wages, not benefits, not even oppressive working conditions drive employees to a union as much as bad treatment by the boss.

Almost half of respondents say unions have outlived their usefulness

2011-09-17T09:25:00.000-07:00

48% of respondents in a Rasmussen survey see no further need for unions. Click through to the survey questions to get a better take on the results.

Age based hostile environment claim in Fifth Circuit

2011-09-16T12:21:00.000-07:00

In Dediol v. Best Chevrolet, the Fifth Circuit has for the first time held a hostile environment claim under the ADEA is actionable. The Court reversed summary judgment for the employer both on the ADEA hostile environment claim as well as on a religious discrimination hostile environment claim.

Labor leader remembered

2011-09-16T09:26:00.000-07:00

The Times Picayune today reported on the September 4th death of Victor Bussie. Bussie served as the head of the Louisiana AFL-CIO for 41 years until his 1997 retirement. The article provides an interesting overview of Bussie's career.

Trade Group sues to prevent new notice posting requirement

2011-09-15T08:10:00.000-07:00

The National Association of Manufacturer's (NAM) has filed suit to compel the NLRB to suspend its new rule requiring employers to post a notice in the workplace concerning rights employees have under the National Labor Relations Act. It appears this is in keeping with the NAM's battle against regulations it maintains impede productivity and job creation. There is a world of difference between a environmental regulation and a notice posting requirement, but as they are both new regulatory restraint, the NAM is against them. The NLRB requirement requires the posting of a notice that the NLRB provides as a free download. Its hard to distinguish this posting requirement from other requirements under state and federal law which compel employers to post notices to inform employees of their rights. The real issue here is employers fear employees might learn something that they will act upon. There is a strong argument the new requirement, when assessed in the context of the new rules for representation elections the Board has proposed, presents an opportunity for the sophisticated employer who integrates appropriate discussions into a program of education for employees.

NRLA rights notice

2011-09-13T15:31:00.000-07:00

The NLRB has released a downloadable version of the Notice employers are required to post advising employees of their rights under the NLRA. Our previous post on the requirements is here.

What is conficential?

2011-09-12T09:02:00.000-07:00

The American Bar Association has issued a formal opinion on an attorney's responsibility to advise clients concerning "the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access." Attorneys representing employees should advise their client not to use their employer's computers, devices or e-mail to send confidential communications.

On jobs

2011-09-09T08:04:00.001-07:00

"I reject the idea we have to strip away collective bargaining rights to compete in a global economy."

President Obama 9/8/11

Red meat for organized labor, but a little short on specifics.

Isn't it ironic

2011-09-08T06:53:00.000-07:00

The EEOC has sued the Scooter Store (they sell mobility to those with limitations on walking) for disability discrimination.

Things change

2011-09-07T09:32:00.000-07:00

During the introductory lecture in my labor law class, I point the students to Section 1 of the NLRA which contains findings and policies supporting passage of the Act. The statements are remarkable, even revolutionary when you think of the public's current perception of the role of government and its intrusive effect on private business. The section concludes declaring the public policy of the United States to be one supporting collective bargaining. The National Labor Relations Act fundamentally altered the role of government in regulating the process whereby organized labor negotiated with business the terms and conditions of private employment. In class, we discuss not only whether the NLRA would be passed today, we also discuss whether it would be deemed constitutional if considered res nova by the current Supreme Court. Long time blogger Michael Fox posted similar thoughts at Jottings by an Employment Lawyer. How different public sentiment has developed in response to the Great Recession, than it did to the Great Depression.

YIKES!

2011-09-06T15:05:00.000-07:00

James Hoffa, President of the Teamsters had some fighting words for the Right when he warmed up a labor crowd for President Obama in Michigan. There is a bit of a misquote involved.