Black Swan's Intern Problem

A while back, I wrote about how the movie Black Swan was filled with employment law lessons. (Black Swan: A Message to Employers).  Now, it may offer even more. David Yamada at Minding the Workplace posts about a wage and hour issue stemming from the production itself.  Yamada links to a New York Times article which explains that two unpaid interns have filed a claim under New York minimum wage and overtime laws. From the NYT:

The lawsuit, filed in federal court in Manhattan, claims that Fox Searchlight Pictures, the producer of “Black Swan,” had the       interns do menial work that should have been done by paid employees and did not provide them with the type of educational experience that labor rules require in order to exempt employers from paying interns.  

2nd NLRB Facebook ALJ Decision

Today, in Knauz BMW, an NLRB ALJ determined that an employee had engaged in protected concerted activity on facebook, but was fired for other, unprotected facebook activity. Additionally, the ALJ ruled that the Employer's handbook contained unlawful provisions.

This is the second ALJ decision in a case that hinges on protected activity over social media. The first was Hispanics United of Buffalo.

Cambodian Factory Syndrome? Or Mass Hysteria?

Something is going on in Cambodian factories and it might be something known as mass hysteria. If something like this happened in the US would mass hysteria be covered under the ADA?

From Livescience.com:

Researchers from the United Nations recently met in Cambodia to solve the mystery of why large numbers of female workers in that nation have succumbed to an unknown (and temporary) illness. But rather than a physical illness as the source, the scientists may want to look at the mind as the root cause.

(It's not that women are the only workers who are being affected, it's that the majority of workers in these factories are women.)

Workers in shoe and clothing factories have reported feeling fatigued, dizzy and nauseated. Most claimed that they felt faint, though none actually fainted. After some rest and medical attention, the women quickly recovered and went back to work; few if any reported lingering symptoms. So far no one has found any toxin or environmental contamination that could cause the symptoms.

Over a thousand workers have experienced similar episodes since June. The most likely explanation is mass hysteria, also called mass sociogenic illness.

Many people misunderstand the nature of mass hysteria and assume that victims are making up their symptoms. The complaints are real and verifiable; the victims are not imagining their problems. It is not a joke, nor a hoax. Nor is a diagnosis of mass hysteria merely a default explanation when investigators can't find a cause. In fact there are several fairly specific diagnostic criterion.

Mass hysteria often begins when individuals under stress convert that stress into physical ills. Co-workers, family and friends may also begin exhibiting the symptoms through contagion. Outbreaks are most common in closed social units (such as schools, hospitals and workplaces) and where afflicted individuals are under pressure and routine stress. Mass hysterias tend to afflict girls and women more often than boys and men, probably because the illness spreads through social ties, and females tend to have stronger social bonds than males.

Often the physical complaints are accompanied by reports of a strange smell, sound or lights. One of the most famous cases of mass hysteria occurred in 1997 Japan, when thousands of people claimed to suffer symptoms caused by flashing lights in the cartoon Pokémon. Only a small percentage of those afflicted actually had seizures; the rest were victims of mass hysteria.

Grumbler vs. Yes Man

This week at Catholic churches, the Gospel readings again turned to work on a vineyard.  The reading was Matthew 21: 28-32. In this passage, the mettle of two different sons is compared.  Neither son is ideal, one because of his attitude and the other because of his lack of follow through, but one is clearly better to have around.  Employment discrimination cases often hinge on disparate treatment evidence comparing the misdeeds of one employee to another, so you might find it interesting to take a look at the passage:

28	"What do you think? A man had two sons; and he went to the first and said, `Son, go and work in the vineyard today.'
29	And he answered, `I will not'; but afterward he repented and went.
30	And he went to the second and said the same; and he answered, `I go, sir,' but did not go.
31	Which of the two did the will of his father?" They said, "The first." Jesus said to them, "Truly, I say to you, the tax collectors and the harlots go into the kingdom of God before you.

I wonder if there has ever been a disparate treatment case where an initially insubordinate but ultimately obedient employee is compared with a "yes man" who ultimately fails to actually do what he says he will. Would it be appropriate to cite Matthew 21?

Last week's post on a Jon Hyman inspired vineyard parable here, and next week will be the last of three parables on vineyards.

Pagtatalik Strike + X= Labor Strike?

I blogged a while back about a woman's domestic relations strike against her husband.  Today, I bring you news of a marital relations strike.  Pagtatalik is a Filipino word for sex.  That's what some ladies in a village in the Philippines have withheld in order to get their husbands to cease warring.

From CNN:

A group of women in a violence-plagued area of the Philippines came up with their own weapon to end the fighting -- a sex strike.
The women withheld sex from their husbands until they promised to quit fighting. Their stand helped end clashes in July between villages in rural Mindanao Island, a recently released U.N. Refugee Agency report says.

In a way this is actually a labor strike.  Nine months (X) from now, there will be no labor.

Big Boss Man- Singing as PCA?

An oldie, but a goodie, this week's labor related song of the week is Big Boss Man. It's a blues song sung by many (Elvis Presley and the Grateful Dead among them), but first recorded by Jimmy Reed. The song is a complaint directed at a hard-driving boss. Even though the singer is complaining about terms and conditions of employment (working hours, breaks, lack of help), the singer's complaint is likely unprotected under the NLRA as the song seems to only be about his own personal issues and not about group concerns. Now, if two or more employees were singing this song together they could be cooking with gas, although maybe they'd just be griping.  

With singing on picket lines and the long history of the NLRA, you have got to figure there are a bunch of cases on singing as protected activity. But I only know of two. There is Tribune Publishing Co. (N.L.R.B. Div. of Judges 2001) where the judge concluded despite the respondent's concession ("By singing the union's name so that employees could hear him, Alger was arguably engaged in union activity. By singing in a voice to bolster the spirits of his co-workers, Alger was arguably engaged in concerted activity."), that a union steward singing a ballad with union lyrics was merely seeking attention and not engaged in protected concerted activity. And then there is MGM Grand Hotel, 275 NLRB 1015 (1985) where the discriminatee's termination was unlawful where others weren't really harassing employees with their "scab song". Are there more singing cases out there?

 Here are the lyrics and the Jimmy Reed version

Big boss man
Can you hear me when I call
Big boss man
Can you hear me when I call
Oh, you ain‘t so big
You‘re just tall, that's all

You got me working, boss man
Working 'round the clock
I want me a drink of water
You won't let me stop
You big boss man
Can you hear me when I call?
Oh, you ain't so big
You just tall, that's all

Gonna get myself a boss man
One gonna treat me right
Work me hard in the day time
But I'll sure rest easy at night (Grateful Dead lyrics vary slightly)
Big boss man
Can you hear me when I call?
Oh, you ain‘t so big
You just tall, that‘s all

Parable of the Vineyard Workers

Jon Hyman of Ohio Employer's Law Blog posted on Monday "What would Jesus pay? Day rates under the FLSA."  Jon begins:

So I sat in church yesterday morning listening to the parable about the workers in the vineyard. Since I’m Jewish and haven’t spent a whole lot of time inside churches, it was the first time I had ever heard this story.

As it happens, I listened to that same Gospel reading on Sunday, which leads me to believe that Jon was likely in a Catholic Church.  A neat thing about Catholic churches is that whether you are sitting in a church in Ohio or in Alabama as I was on Sunday, everybody is following the same universal readings.

The Gospel reading we heard was Matthew 20:1-16:

1	"For the kingdom of heaven is like a householder who went out early in the morning to hire laborers for his vineyard.
2	After agreeing with the laborers for a denarius a day, he sent them into his vineyard.
3	And going out about the third hour he saw others standing idle in the market place;
4	and to them he said, `You go into the vineyard too, and whatever is right I will give you.' So they went.
5	Going out again about the sixth hour and the ninth hour, he did the same.
6	And about the eleventh hour he went out and found others standing; and he said to them, `Why do you stand here idle all day?'
7	They said to him, `Because no one has hired us.' He said to them, `You go into the vineyard too.'
8	And when evening came, the owner of the vineyard said to his steward, `Call the laborers and pay them their wages, beginning with the last, up to the first.'
9	And when those hired about the eleventh hour came, each of them received a denarius.
10	Now when the first came, they thought they would receive more; but each of them also received a denarius.
11	And on receiving it they grumbled at the householder,
12	saying, `These last worked only one hour, and you have made them equal to us who have borne the burden of the day and the scorching heat.'
13	But he replied to one of them, `Friend, I am doing you no wrong; did you not agree with me for a denarius?
14	Take what belongs to you, and go; I choose to give to this last as I give to you.
15	Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity?'
16	So the last will be first, and the first last."

This reading inspired Jon to give some thoughts on day rates under the FLSA.  I don't have anything  labor and employment law related to add, other than to say that even two thousand years ago the fairness of pay appears to have been an issue readily understood by Jesus' audience.  In the absence of something to say about labor and employment law, I'll give some thoughts on the passage and close with a question about labor and employment law.

It's easy to see why the laborers who had worked all day were angry that they were paid the same as those who had toiled for only an hour. It's not fair.  There is a human yearning for things to be fair, and that yearning colors a lot of our laws and interactions.  But Christianity isn't fair. 

 A more familiar parable is that of the prodigal son.  It's not fair that the brother who did the right thing his whole life sits by while the fattened calf is slaughtered upon his squandering brother's return.  If a woman is a pious saint from an early age and dies a martyr, God's reward for her is the same as the murderer who finds salvation on death row.  That's not fair. This is a feature, not a bug. It's called grace.  We are sinners and if we all got what we deserved, heaven would be a lonely place.  Grace is the free and undeserved help that God gives us to respond to his call to become children of God.  

Something more on point to think about: To what extent has the concept of grace influenced our labor and employment laws? 

By the way, here is an incentive to go to a Catholic Church on this coming Sunday: you will hear another parable about work on a vineyard.

Corb Lund: Labor Related Artist of the Week

Corb Lund has won the JUNO Roots & Traditional Album of the Year Award (Solo)(2006), the Canadian Country Music Association Roots Artist of the Year Award (2008, 2009, AND 2010) the Indie Acoustic Project Lyrics of the Year Award (2007), the Canadian Folk Music English Song Writer of the Year Award (2008) and today he adds to those awards by being selected as the Labor Related Artist of the Week. 

The topics of Lund's songs range from the nettlesome problem of keeping white shirts clean to my personal favorite (although not labor related) the horse soldiers of history, and often center on work.  In Long Gone to Saskatchewan, Lund sings about a rancher who is pushed out of Alberta because of oil inflated land values.  In Talkin Veterinarian Blues, Lund sings about the unlikely subject of a career in animal doctoring.   Lund's best songs about work though come in the form of contrasting working men in Roughest Neck Around and Hard on Equipment/Tool For the Job.  Roughest Neck Around is an ode to a great oil driller.  Lund celebrates a hard working man at the top of his craft who is indispensable to those he works for.   As always, Lund has great lines including:

 You'd better hire him on, he's the roughest neck around
He got the power in his hands to pull the dragons from the ground

 On the other hand, Hard on Equipment/Tool For the Job is an ode to a likeable guy who just doesn't quite do a good job.  Great lines include:

His corners ain't square and his floors ain't level and  he's had a little trouble with the old tape measure  His doors don't close because the jams ain't plum and he's a god damn menace with an air and nail gun     

                           

Roughest Neck Around

Hard on Equipment/Tool for the Job

Strippers ruled Employees not Independent Contractors

In an unsurprising decision by the Northern District of Georgia, in Clincy v. The Onyx Club, nude dancers at The Onyx Club in Atlanta were recently ruled employees rather than independent contractors for FLSA purposes.  I have not been keeping track, but it seems like most of these decisions are going the same way.  In this case, the court dismissed the club's threshold argument that the economic realities test should not be applied because the dancers were only there on their own behalf and not there for the benefit of the club and so no putative employer-employee relationship could be established.  Having determined that the economic realities test was appropriate, the Court determined that five of the six factors favored an employee relationship and the sixth (length of relationship) was not well enough established to support either.  The factors the court looked at were:

(1) the nature and degree of the alleged employer's control as to the
manner in which the work is to be performed;
(2) the alleged employee's opportunity for profit or loss depending
upon his managerial skill;
(3) the alleged employee's investment in equipment or materials
required for his task, or his employment of workers;
(4) whether the service rendered requires a special skill;
(5) the degree of permanency and duration of the working
relationship;
(6) the extent to which the service rendered is an integral part of
the alleged employer's business.

Below is an animation that I put together to kind of summarize the arguments.  It does not depict any dancing or events from the case and is suitable for work.

Is Protective Activity Protected?

 From the Consumerist, below is a video of an attempted robbery at a Detroit area Walgreens that resulted in three attempted firings of a gun, some firing of a gun, and one firing of an employee that fired a gun.

Two masked robbers entered the pharmacy, one jumped over the counter and tried to shoot the pharmacist, but had problems with his weapon.

"At that moment, [the pharmacist] reasonably and justifiably believed that the was going to be shot and either killed or seriously injured by the armed robber," [said the pharmacist's lawyer]. "[He] then fired his handgun several times in self-defense and in defense of his co-workers."

According to the Consumerist:

Walgreens dismissed the man for violating its "no escalation" policy and disagrees with the plaintiff's contention that he had a "right to carry or discharge a concealed weapon on its premises at any time."

The employee filed a wrongful termination suit.  Michigan recognizes a public policy exception to at will employment as well as an implied-contract exception (Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880 (1980) is one of those casebook cases on the latter), so he is probably suing under one or both of those.  Given that this guy had been robbed at work before and was licensed to carry a concealed weapon, it would be interesting to see the outcome of the public policy exception.

But given the reaction of the public and the press this one is probably destined for settlement.

Meetings: The Alito View vs. The Sotomayor View on Oral Argument

Steven Nguyen of Workplace Psychology had an interesting post a while back, "Meetings, Meetings and More Meetings."  Nguyen wrote:

I have always been fascinated by why organizations and supervisors insist on continuing the maddening idea of having so many meetings. I have seen places where they seem to have a meeting just to talk about planning for the next meeting. I call it a “meeting about another meeting.”

Nguyen noted a study which concluded  that "more meetings were associated with increased feelings of fatigue and workload."  

That conclusion makes sense to me.  Meetings can be enjoyable, they can even be great.  But, they require capital on the part of those who attend them.  To begin with, meetings have to be scheduled, prepared for, possibly rescheduled and summarized afterward.  And then there are the meetings themselves which are complicated not only by the exchange of information and ideas which they are designed to accomplish, but also by personal dynamics, posturing, emotional variables, and differing levels of interest and involvement. I wonder if more meetings are associated with more workplace lawsuits.  After all, if people are stuck in a room together while they feel fatigued and overworked, it seems more likely that they will irk one another than if they have more physical and psychological distance.  It seems also more likely that their biases will come out in a face-to-face exchange than they would in a written exchange.  In a meeting, a person might continually be reminded of things about the other person which bias them in one direction or another, whereas a written exchange might lend itself to objectivity. 

Efficiency vs Empathy

Whether you can't get enough meetings or can't avoid them enough, you are in good company.

Two Supreme Court justices have (fairly) recently spoken about a kind of ultimate meeting: oral argument.  Justice Samuel Alito spoke about oral argument at the University of Alabama School of Law (which I was fortunate to hear) and has made similar remarks more recently.  Alito has been quoted as saying, “Oral argument is a relatively small and, truth be told, a relatively unimportant part of what we do.” (May 2011, Law Day gathering in St. Louis).  Alito was unimpressed with oral arguments in part because he rarely learned something new at them.  All of the facts and arguments were already contained in the briefs and the record.  Alito explained that people read a lot faster than they speak.  Ordinary people read at a speed somewhere around 250-300 per minute (who knows how fast Supreme Court Justices read) and talk only around 150-200 words per minute .  So the efficiency argument is in Alito's favor.  That's part of what's behind the text message revolution.  Talking takes longer, and there is the scheduling issue.

On the other hand, the written word alone can leave out an emotional component that some value more than others.  Justice Sotomayor was credited with bringing empathy to the Court, and Sotomayor seems to put more stock in oral argument than Alito.  The Atlantic reported that Sotomayor was:

 willing to admit that oral arguments before the court -- even after she and colleagues have done substantial homework on an individual case -- are enormously influential in how she winds up in voting.

So there you have two brilliant minds who seem to place different value on meetings.  Even if you don't like meetings, there really isn't a promotion that will get you away from them, although if you are promoted high enough you get to sit  stoically through them. 

Whether you hate them or love them, if you'd like to improve improve them, check out Nguyen's tips on making meetings more effective.

New Devices, New Injuries

A New York Times article explores the rise of workplace injuries that are tied to the introduction of laptops, tablets and smartphones.  My takeaway is that these new devices aren't ergonomically designed and are encouraging people to stoop, crane and overuse unusual muscles in ways that are likely to lead to repetitive stress injuries like carpal tunnel.  Because of the dual infusion of these technologies into our personal and work lives, it must be difficult in the workers' comp world to parse out whether or to what extent the injuries are caused by work use or personal use of the technologies.

On the brighter side, these new technologies are probably leading to a decline in other injuries and conditions like writer's cramp, paper cuts and fax rage (similar to road rage; happens when faxes don't go through properly).

An Example of Fax Rage