Captive Audiences

Once again, our friend Dmitri has an interesting piece on labor law in today's union-unfriendly environment. Check out this piece in the Providence Journal on employer captive audience speeches and employees' First Amendment rights.

World Day Against Child Labor

Apparently, June 12 is World Day Against Child Labor. It's hard to believe that we're still fighting child labor in the 21st Century.

Chipping Away at Title VII

The Supreme Court has just taken another bite out of employees' rights to challenge workplace discrimination. The decision limits employees' ability to redress discrimination under Title VII of the Civil Rights Act of 1964 unless they can point to a "discrete act" that occurred within 180 days of the complaint.

In this case, the plaintiff, Lily Ledbetter, originally won a lawsuit against her employer, Goodyear Tire & Rubber Co., for gender discrimination. Ledbetter started her job at the same pay rate as men in similar positions, but 19 years later she was earning more than $500/month less than the lowest paid male in her position (she was the only female in that position at the time). The Eleventh Circuit Court of Appeals reversed the lower court's ruling, and the Supremes upheld the Court of Appeals' decision in favor of Goodyear. That means that although Ms. Ledbetter worked for 19 years receiving significantly less pay than men who were doing the same work, she could only base her claim on whatever happened in the 180 days leading up to her claim. Those 180 days, in the eyes of the court, were not enough to prove discrimination in this case. In other words, the pattern of discrimination established during the previous two decades and its cumulative financial impact on Ledbetter meant zilch to the Court.

In order to establish a claim for the pay disparity during the period before the 180 days, Ledbetter would have had to file a claim every time she failed to get an increase in salary on par with her male counterparts. As the National Employment Lawyers' Association (NELA) pointed out in its Amicus brief, this departs significantly from violations under the Fair Labor Standards Act and National Labor Relations Act, under which employees may redress recurring violations even if those violations occurred prior to the 6 month statute of limitations period:

Preventing an employee from remedying a recurring
violation simply because the conduct is long-standing
serves no purpose. The employer is aware of the continued
consequences of its illegal acts, and employees continue to
suffer – with ever-growing heft – the expense of that
conduct. The law permits suit on recurring violations
carried out during the limitations period pursuant to
decisions to violate the law which pre-date the limitations
period because that wrongful intent is equally present in
each application of the earlier decision. A contrary rule
would permit the wrongdoer to benefit from its wrongful
act indefinitely merely because the first instance of the
repeated wrongdoing was not timely challenged

The practical effect of this decision is that employers can sleep well knowing that if they spread pay differentials among women and minorities over a long period of time - slowly and covertly widening the gap between their favored class of worker and the discriminatees each time salaries are adjusted - the law will back them up. If you think that's fair, Ginsburg's dissent could be enlightening.

Labor's "To Do" List

Dmitri Iglitzin, a union-side labor lawyer out of Seattle, has a terrific article on TomPaine.com that sets forth a proposed political agenda for the labor movement. Here's his "Top 7":

1. Enact the Employee Free Choice Act
2. Enact the RESPECT Act (see the last post)
   
3. Equalize union organizers' access to employees during organizing campaigns
4. Insist on labor standards in future free trade agreements and improve those in existing agreements
5. Extend collective bargaining rights to supervisors
6. Repeal the NLRA's "Right to Work" provision
7. Repeal the Taft-Hartley Act's ban on "secondary boycotts"
   

R.E.S.P.E.C.T.

The RESPECT Act, [Re-empowerment of Skilled and Professional Employees and Construction Tradeworkers Act], was the topic of a hearing on Tuesday, May 8, before the House Subcommittee on Health, Employment, Labor and Pensions [HELP]. This is the bill that would delete "assign" and "responsibly to direct" from Section 2(11) of the NLRA, which defines who is classified as a "supervisor" under the Act. The bill would also require that individuals classified as supervisors have supervisory authority for at least 50% of their working time.

The Democratic House members of the committee were totally supportive. The hearing room was packed with interested, engaged nurses who gave enthusiastic support to the witnesses and to Members of Congress who spoke in support of the bill. I've never been to a hearing with so much applause -- or any applause, for that matter. Only one Republican member attended the hearing.

Testifying in support of the RESPECT bill was a very strong and knowledgeable panel that included Sarah Fox, of counsel to Bredhoff and Kaiser and former member of the NLRB, Lori Gay, an RN at the Salt Lake Regional Medical Center, and William Tambussi, a management lawyer and counsel to Cooper University Hospital. Roger King of Jones, Day testified against the bill on behalf of the Chamber, the HR Policy Association and the Society for Human Resource Management (SHRM).

Former NLRB member Sarah Fox expertly guided the Committee through an overview of the purpose and history of the supervisory exception. She argued that this clarification of the supervisory definition is a positive and necessary reform that will create a fair, appropriate and bright-line test for determining whether individuals are entitled to the protections of the Act.

Lori Gay, an RN for 21 years at the Salt Lake Regional Medical Center, testified about the legal machinations which have denied her and her co-workers collective bargaining since the RNs there voted in May of 2002 for representation by the United American Nurses. Their ballots were impounded, the case appealed to the Board, remanded post-Oakwood, re-heard and again appealed to the Board. The Regional Director's decision would eliminate 64 out of 153 nurses as supervisors, including Gay.

William Tambussi, a management lawyer and counsel to Cooper University Hospital explained how this hospital created a boundary between professional nursing staff that are part of the bargaining unit and those who are genuinely supervisory, without relying on the "assign" and/or "responsibly to direct" language. According to Tambussi, enactment of RESPECT would not interfere with any managerial perogatives. Rather, it would eliminate the current confusion, misinterpretation and inconsistent application of the supervisory exemption.

Roger King of Jones, Day claimed that, in fact, the recent Oakwood trilogy found that most of the challenged workers were NOT supervisors - ignoring the roadmap the Board created a for employers to manipulate the duties of their workers in order to exclude them as supervisors. He also argued that the bill would detrimentally impact small and medium size employers, that it would interfere with the "delicate compromise" in the NLRA, and that it would make it hard for employers to comply with OSHA, FLSA and other employment statutes becuase they wouldn't have enough supervisors. [You have to wonder if they are saving their good arguments for later.]

Check out copies of the testimonies, or watch an archived hearing webcast.

(Thanks to the AFL-CIO Lawyers' Coordinating Committee for this post!)

Thou Shalt Discriminate?

A recent New York Times article addressed the intersection of employee rights and the First Amendment right to free exercise of religion. As stated in the article, religious organizations have long been exempted from fair hiring and employment practices by which other non-religious organizations must abide. These religious organizations are free to discriminate on the basis of religion, which means that someone whose personal life is not viewed as consistent with the beliefs of a religious employer can be fired, even if that person is a member of the same religious sect. These employers are also apparently free to discriminate based on age, disability or sex, without legal consequence. In addition, religious employers are exempt from pension laws and court rulings have made it easier for some, including hospitals affiliated with a religious sect, to resist efforts of employees to organize.

The article profiles the plights of two women training as nuns, one also working as a Catholic university’s chaplain; a minister; and a rabbi whose claims of discrimination based on gender, age, and disability, committed by religious entities, have met with little sympathy in the federal courts based only on the fact that the employers were religious in nature, and thus the government could not interfere with their employment practices. The article also profiles the struggle of faculty at a Catholic college and workers at a Seventh Day Adventist hospital to overcome employer attempts to prevent unionization. One undercurrent of the article is the irony that these entities, whom one would think would be the most compassionate and just of employers, have turned out to be some of the least sensitive because the federal government has made them exempt from the laws that guarantee employees’ basic human rights.
To read the whole article, go here.

The Skinny on the Anti-Union Movement

American Rights at Work, a national workers’ rights organization, has a new website to counter anti-union groups’ stepped-up rhetoric of late. The site features information and news about the Center for Union Facts, National Right to Work, the Chamber of Commerce, for-profit union busters, and other anti-union organizations. There are helpful tidbits about the misinformation spread by these organizations, as well as their connections to prominent anti-union political figures and funders.
For all this good stuff and more, check out the site at http://AntiUnionNetwork.org.