Labor and Employment Law Christmas Gift Ideas

 The ABA Journal newsletter put out a gift ideas for lawyers article yesterday, which includes the Harvey Birdman Box Set, various bobble heads and gadgets.  I don't have anything that exciting to pass along, but if you're looking for a gift idea for a labor and employment law attorney or professional, here are four books that might do the trick:

1. The Tooth Fairy.  A nice piece of fiction by Federal Judge Jacob Hart, this book's main characters consist of a union president, a factory owner, and a management side labor attorney. The plot hinges around a discharge grievance and arbitration. What more could you ask for? Well, there is also violence and romance.  If it sounds familiar, yes, I recommended this book last year as well.

2. Bargaining with Baseball: Labor Relations in an Age of Prosperous Turmoil.  I have not read this book by the former NLRB Board member, but it seems like a natural for anybody interested in labor law and baseball. It was reviewed by Rick Eymer at Palo Alto Online:

William B. Gould IV retains his lifelong passion for two things: the law, specifically labor law, and baseball, most specifically the Boston Red Sox.  The Professor Emeritus at Stanford Law School, where Gould has presided since joining the faculty in 1972, has managed to capture both of his passions in his latest book, Bargaining with Baseball: Labor Relations in an Age of Prosperous Turmoil (McFarland and Company, $39.95).

3. Wild West 2.0. I was impressed by David Thompson's presentation at the Technology in Labor and Employment Symposium and picked up his book. The book does a great job of breaking down the complex series of tubes that we call the Internet, has a worthwhile perspective and is filled with entertaining, interesting and illuminating anecdotes.

4.Thinking Fast and Slow. I have not read Daniel Kahneman's newest book on the way we make decisions. but I heard an interesting interview with Daniel Kahneman about the book and am putting it on my list. Here's an interesting bit from the interview about how factors in the environment can influence the decisions our institutions make:

Take for example the study out of the National Academy of Sciences, which found that Israeli parole judges — known for turning down parole applications — were more likely to award parole in cases they heard immediately after taking a meal break.
"Presumably they are hungry, but certainly they are tired, they're depleted," Kahneman says of the judges' state when they are a few hours away from a meal. "When you're depleted, you tend to fall back on default actions, and the default action in that case is apparently to deny parole. So yes, people are strongly influenced by the level of glucose in the brain."
The implications of such a study are tremendous: If democratic society is based on people making decisions, what does it mean when all it takes to influence those decisions is a little bit of glucose?

 "Clearly, the decision-making that we rely on in society is fallible," Kahneman says. "It's highly fallible, and we should know that."

And if you aren't sold yet, here's an excerpt from the introduction about protected concerted activity watercooler talk:

Every author, I suppose, has in mind a setting in which readers of his or her work could benefit from having read it. Mine is the proverbial office watercooler, where opinions are shared and gossip is exchanged. I hope to enrich the vocabulary that people use when they talk about the judgments and choices of others, the company's new policies, or a colleague's investment decisions. Why be concerned with gossip? Because it is much easier, as well as far more enjoyable, to identify and label the mistakes of others than to recognize our own. Questioning what we believe and want is difficult at the best of times, and especially difficult when we most need to do it, but we can benefit from the informed opinions of others. Many of us spontaneously anticipate how friends and colleagues will evaluate our choices; the quality and content of these anticipated judgments therefore matters. The expectation of intelligent gossip is a powerful motive for serious self-criticism, more powerful than New Year resolutions to improve one's decision making at work and at home...

...When you are asked what you are thinking about, you can normally answer. You believe you know what goes on in your mind, which often consists of one conscious thought leading in an orderly way to another. But that is not the only way the mind works, nor indeed is that the typical way. Most impressions and thoughts arise in your conscious experience without your knowing how they got there. You cannot trace how you came to the belief that there is a lamp on the desk in front of you, or how you detected a hint of irritation in your spouse's voice on the telephone, or how you managed to avoid a threat on the road before you became consciously aware of it. The mental work that produces impressions, intuitions, and many decisions goes on in silence in our mind.

Furor Over DSM-V (DSM-5)

http://www.qlinks.ca/dsm-v-is

Revisions are being made to the American Psychiatric Association's Diagnostic and Statistical Manual (DSM).  The DSM's are the most prominent source of definitions for mental health disorders.  The current manual, the DSM-IV has been in effect since 1994, with relatively minor "text revisions" in 2000.  The new manual, the DSM-V, is still a work in progress, with two drafts released so far.  The proposed changes have been met with considerable push-back from various groups and individuals.  An October 22  open letter challenging the changes has been internet-signed by more than 5600 people.  The debate about the changes is a good thing to keep an eye on because although inclusion of a condition in the DSM-IV has not been completely synonymous with coverage under various employment laws, the courts have often looked to it for guidance.  Among others, the changes in the DSM-V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).

Here are some snippets from the letter and a couple of thoughts about how the changes they are concerned about might affect ADA claims:

We are also gravely concerned about the introduction of disorder categories that risk misuse in particularly vulnerable populations. For example, Mild Neurocognitive Disorder[5] might be diagnosed in elderly with expected cognitive decline, especially in memory functions.

Older employees are already protected under the Age Discrimination in Employment Act (ADEA). But if older employees with "expected cognitive decline" are classified as disabled under this diagnosis, they get significantly more protection because while employers cannot discriminate on the basis of age, neither are they required to offer any accommodation for age-related problems.  On the other hand, the ADA carries with it a duty to provide a reasonable accommodation for a disability.

 The DSM-5 has proposed to change the Definition of a Mental Disorder such that DSM-IV’s Feature E: “Neither deviant behavior (e.g., political, religious, or sexual) nor conflicts that are primarily between the individual and society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in the individual,”[7] will instead read “[A mental disorder is a behavioral or psychological syndrome or pattern] [t]hat is not primarily a result of social deviance or conflicts with society.”[8] The latter version fails to explicitly state that deviant behavior and primary conflicts between the individual and society are not mental disorders. Instead, the new proposal focuses on whether mental disorder is a “result” of deviance/social conflicts. Taken literally, DSM-5’s version suggests that mental disorder may be the result of these factors so long as they are not “primarily” the cause. In other words, this change will require the clinician to draw on subjective etiological theory to make a judgment about the cause of presenting problems. It will further require the clinician to make a hierarchical decision about the primacy of these causal factors, which will then (partially) determine whether mental disorder is said to be present. Given lack of consensus as to the “primary” causes of mental distress, this proposed change may result in the labeling of sociopolitical deviance as mental disorder.

In most states and localities, political affiliation is not a protected class, i.e., a private employer can make employment decisions based on an employee's political affiliation (as long as political affiliation is not just a proxy for race, sex, religion, age, etc and so long as the policy would not statistically discriminate on the basis of race).  But the open letter seems to suggests that, for instance, ascribing to the sociopolitical philosophy of anarchy could be sufficient to establish a mental health disorder.  In that case, an anarchist could claim that his political beliefs are part of his mental health disorder and thus find protection under the ADA.

The Conditions Proposed by Outside Sources[13] that are under consideration for DSM-5 contain several unsubstantiated and questionable disorder categories. For example, “Apathy Syndrome,” “Internet Addiction Disorder,” and “Parental Alienation Syndrome” have virtually no basis in the empirical literature.

One source defines burn out syndrome apathy syndrome as "a syndrome of primary motivational loss, that is, loss of motivation not attributable to emotional distress, intellectual impairment, or diminished level of consciousness." So, are unmotivated employees going to be getting some ADA protection so long as they can show an ability to perform the core functions of their jobs with a reasonable accommodation? I would think that say, letting an employee listen to the Rocky Soundtrack while working would be a reasonable way to help them overcome apathy.  On the other hand, what if they want to take a few weeks to go to hang out in Nepal? It could get interesting.

The only case that I know of where "internet addiction" was alleged as a disability under the ADA is , but their analysis on whether internet addiction was a qualifying disability was unnecessary due to other grounds for summary judgment.  The term "internet addiction" which began as a hoax obviously stands to gain a lot of credence if it makes its way into the DSM-V.
An internet sex addiction however is not protected under the ADA because of the sexual behavior disorder exceptions (discussed in Pacenza v. IBM Corp).

 I don't think that Parental Alienation Syndrome should really factor into the employment relationship, except maybe in the context of a family run business (a case I would like to read).

Their letter also takes issue with changes to more common ADA disabilities: Attention Deficit Disorder and Generalized Anxiety Disorder.

The reduction in the number of criteria necessary for the diagnosis of Attention Deficit Disorder, a diagnosis that is already subject to epidemiological inflation.      

The reduction in symptomatic duration and the number of necessary criteria for the diagnosis of Generalized Anxiety Disorder.

It will be interesting to see what the final DSM-V looks like and what impact it will have on mental health related claims in labor and employment law.
---------------------------------------------------------------------------------------------------------------------------
Updates:

Thanks to Rick Bales at Workplace Prof Blog, SAM at disabilitylaw.blogspot.com, Eric Goldschein at Business Insider, Martha Zackin at Employment Matters, and Walter Olson both at Overlawyered and later at Cato-at-liberty.org for linking.

Thanks also to a reader in the UK who informed me that I was incorrect in my original post about a recent release of the draft DSM (a second draft was released back in May).  Moreover, the UK reader informed me that they are dropping the Roman Numerals and going with Hindu-Arabic Numerals and so the newest DSM will properly be referred to as the DSM-5.  I am going to break with my policy of neutrality with regard to this issue: I think it's a mistake.