LaborRelated

Celebrity Chefs' Employment Law Problems

2012-03-10T14:38:00.002-08:00

In 1942, Harry Truman said, "If you can't stand the heat, get out of the kitchen." I don't know if he was talking about the then current state of restaurant employment laws, but if he was, things have changed since.

Nowadays there are other options, as is evident by the legal troubles of two celebrity chefs. Jeff Hirsch posted today at Workplace Prof Blog about Mario Batali, et al. agreeing to pay plaintiff former employes $5.25 million to settle allegations regarding alleged tip skimming. And the AU Labor Forum posted earlier in the week about a discrimination suit filed against Paula Deen.

Mario Batali and Paula Deen on ABC's The Chew

LaborRelated Song of the Week: Sons of Fathers

2012-03-08T19:54:00.000-08:00

Sons of Fathers' eponymous single is the LaborRelated song of the week. It's a stoic song about staying true to values and not compromising despite what temptations may be offered and what consequences may come.

Some of the lyrics:

...I am working every day to make something of myself, hoping to please all the faces on the shelf

...you can try to change me into something that I'm not

Even though I know what's coming, I remain a righteous man

...I am the son of my father and I do the best I can

It's a good song for a Friday in Lent too.

Braun Drug Testing and Industrial Due Process

2012-02-25T12:16:00.003-08:00

Yahoo news and Slate have coverage and commentary on an arbitration panel's decision to overturn the 50 game suspension of National League MVP Ryan Braun. Braun had been suspended for testing positive for synthetic testosterone. Braun--who maintains his innocence--with the MLB Players Association, fought the suspension on the grounds of the chain of custody provisions of nonadherence to the league's and players' Joint Drug Prevention and Treatment Program.

Braun's urine sample had been collected on a Saturday night and not sent to the testing lab until Monday.

Article X of the Joint Program, Integrity of the Specimen, lays out a very detailed process on how the testing process works. At Section V., it provides,

7. The Collector shall check the “FedEx” box in the section entitled “Specimen Bottles(s) Released to:” Absent unusual circumstances, the specimens should be sent by FedEx to the Laboratory on the same day they are collected. [Emphasis supplied].

Although the arbitration decision has not been published, by looking at Article X it's pretty clear where at least some of the battle lines were drawn.

The decision is stirring up dismay and controversy among baseball fans, but it stands as a good illustration of "industrial due process" and a good reminder for those of us in labor and employment law that there is no substitute for a close reading of a contract.

Lent, Catholicism, Religious Accommodations

2012-02-21T21:33:00.001-08:00

Jesus goes into the desert for 40 days and 40 nights

It's Ash Wednesday, the beginning of Lent, and I have been wondering about where the courts and agencies have come down on Catholic employees' requests for religious accommodations. Lent has several days which are very important to Catholics: Ash Wednesday, Holy Thursday and Good Friday (additionally the feast days of St. Joseph and St. Patrick fall within Lent). Although these days are not holy days of obligation, Catholics have sincere beliefs about how to observe them. Is there much guidance regarding their requests to shift schedules to observe these days? Additionally, Catholics are called to personal acts of penance during Lent. Is there any guidance for requests to accommodate these?

I have been looking for some kind of guidance specifically tailored to Catholic employees, a kind of "how to" on seeking religious accommodation that would list all the ways a Catholic employee might want to be accommodated and case law and guidance on what results he might expect. If someone knows of something like this, please drop a comment or send me an email. If someone is interested in creating one, please send me an email, I would love to work on that project. In the meantime, I have spent a little time hunting around to compile a list of Catholic accommodation decisions:

Good Friday

1. The Equal Employment Opportunity Commission's (EEOC) Compliance Manual states under Example 3 , "A Catholic employee requests a schedule change so that he can attend church services on Good Friday...[this and other] accommodation requests relate to a “religious” belief or practice within the meaning of Title VII." Unfortunately, the guide does not cite a Catholic employee related case for this proposition, but it is probably referring to 2.

2. Edwin Cardona and Felipe Borrero v. U.S. Postal Service, EEOC Appeal Nos. 01882012, 01882013, via 1990-MAR Army Law. 53, *54 (Oct. 11, 1989). The Postal Service failed to reasonably accommodate the religious practices of Catholic employees where it allowed them to take only five hours of leave on Good Friday, while allowing Jewish employees to take a full day, "the agency's justification for the different treatment was based on its interpretation of Catholic cannon law, which did not require more than two hours of church attendance on Good Friday, and Jewish law, which forbade work on holy days. The EEOC held that an agency had no authority to interpret religious laws or evaluate the sincerity of an individual's religious practices in developing its policy on religious accommodation."

3. Bronx Lebanon Hospital Center (1973 Arbitration decision) via 48-DEC Disp. Resol. J. 54, 59 "the arbitrator upheld the hospital's right to discipline a Roman Catholic employee for refusing to work on Good Friday since church law did not prohibit an employee from working on that day. Citing the many church services that are held in the evening in that community to accommodate the religious needs of working people and the statement of the hospital's Roman Catholic chaplain that Catholics may work on Good Friday, the arbitrator concluded that the grievant's decision not to work that day was more a matter of religious preference as opposed to an obligation that warranted protection under the contract's nondiscrimination provision."

4. NLRB v. Sauk Valley Mfg. Co., Inc., 486 F.2d 1127, (C.A.9, 1973) The NLRB conducted an election on Holy Thursday and Good Friday, but the results were not overturned.

Holy Days of Obligation and Sabbath

5. Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298 (Mass.,1996). This was a procedurally complicated case where two Catholic racetrack employees were not allowed to take off Christmas. The case decided under Massachusetts law rather than Title VII and that law was struck down as unconstitutional.

6. Salisbury v. Potter, 2010 WL 128642, (N.D.Ill., 2010). A Postal employee whose practice was to attend mass on Saturday evenings did not suffer an adverse action when forced to work Saturdays because he had opportunity to attend on Sunday.

7. Felix v. Baxter Healthcare Corp., Not Reported in F.Supp.2d WL 3245368, (C.D.Cal., 2010) Employer attempted to accommodate employee's request to not work Sundays, but employee did not follow up on employer's suggestions.

Personal Actions

8. Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995) Catholic employee opposed to abortion wore a button and a T-shirt with photographs of a fetus. Other employees complained, the employer told her to stop wearing the shirt, and when she refused it fired her. The court held that the plaintiff's religious beliefs did not require her to wear the button in front of other employees. For commentary see 22 Harv. J.L. & Pub. Pol'y 959, 979.

9. Tiano v. Dillard Dep't Stores, 139 F.3d 679 (9th Cir. 1998) Catholic employee's religious pilgrimage to Medjugorje, Yugoslavia was a personal preference because the employee's Catholic faith did not require that the pilgrimage be made during the employer's busiest season.

10. Several resources state without citation that there is a case where an employee's "Old Catholic" belief that she had to keep her head covered at all times was held to be protected.

11. EEOC v. AFSCME, 937 F.Supp. 166 (N.D.N.Y.1996) A Catholic employee who opposed capital punishment and abortion but who had to pay agency fee to Union was reasonably accommodated by the Union allowing the Catholic employee to donate to a charity instead.

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Update: Thanks to Ann Kiernan for posting on and linking to this and to Jon Hyman for including it in his invaluable What I Read This Week post.

Expressing Milk Under Title VII and the PPACA

2012-02-09T19:42:00.000-08:00

Marcia McCormick posted on Workplace Prof Blog today about a Texas sex discrimination case EEOC v. Houston Funding that lost on summary judgement where the EEOC alleged that a discriminatee had been fired for asking to be able to pump breast-milk at work. McCormick summarized the holding as follows:

The district court judge held that even though discrimination on the basis of pregnancy, childbirth, or related medical conditions is a violation of Title VII, that once the employee gave birth, she had no more pregnancy-related conditions and that therefore firing someone on the basis of lactation or pumping breastmilk could not be sex discrimination, citing these other district court decisions in support: Puente v. Ridge, No. M-04.267, 2005 U.S. Dist. LEXIS 46624, at *1I-12 (S.D. Tex. July 6, 2005); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *30 (D. Or. Apr. 9, 1999; Wallace v. Pyro Mining Co., 789 F . Supp. 867, 869 (W.D. Ky. 1990).

Whether or not this summary judgement withstands an appeal, it probably won't have much of an effect on the workplace. Little over a month after the alleged discriminatee was fired, the Patient Protection and Affordable Care Act was signed into law. One of the buried provisions of the PPACA establishes the right of women to be given a space (other than a bathroom) to nurse or express milk.

LaborRelated Artist of the Week: Turnpike Troubadours

2012-02-03T21:03:00.000-08:00

This week's LaborRelated artist of the week is the Turnpike Troubadours. I love the Folk-Country-Cajun-Bluegrass marinade that results in the unique sound of this Oklahoma band. In a Long Hot Summer Day, they apply their sound favorably to an old John Hartford song about life working on the Illinois River. What's more, how can you not love a song whose refrain is about working hours?

"For every day I work on the Illinois River, I get a half day off with pay"

"Towboat picking up barges, on a long, hot summer day"

Plaza Auto Redux

2011-12-19T20:46:00.000-08:00

Last November, I posted about an animation of Plaza Auto, 355 NLRB No. 85 (2010) . It's a case that illustrates both protected concerted activity and the leeway that is sometimes given to employees when they say or do impertinent things while engaging in protected concerted activity. The employee in the case was a car salesman who was fired after he raised various concerns on behalf of himself and other employees including complaints about whether the employer was paying the salesmen minimum wage, whether the employer was padding vehicle costs (which cut into commissions), breaks, and access to bathrooms. During a meeting with his boss, the employee raised some of these concerns and was told in so many words that he was free to quit. At that point, the employee let loose a torrent of words. The Board determined that the employee had been engaged in protected concerted activity and had to determine whether the employee lost the protection of the Act by going overboard with his words during the meeting. The Board applied its Atlantic Steel doctrine and determined that he had not lost the protection of the Act and that his discharge was unlawful. Today, the Ninth Circuit took issue with Board's reasoning with regard to one of the four Atlantic Steel factors, nature of the outburst (the others are place of the discussion, subject matter of the discussion; and whether the outburst was provoked by the employer's unfair labor practice), and remanded the decision to the Board for further analysis.

Link to the Board decision here

Here's my animation:

This animation is just a rough imagining of the situation as depicted in the case. Some of the language is from the case, but not all of the language is taken from the case. Artistic liberty and technical limitations abound.

Blessed Adolph Kolping

2011-12-10T07:10:00.000-08:00

From http://en.wikipedia.org/wiki/Adolph_Kolping

For Catholics, today is the feast Day of the Blessed Adolph Kolping, a German priest who ministered to workmen in the Industrial Revolution and founded the Young Workman's Society (Kolping Society). The Kolping Society, whose 450,000 members are spread over 60 countries, emphasizes the sanctification of family life and the dignity of labor.

The son of a shepherd, at a young age, Kolping moved from the countryside to industrial Cologne, Germany. There he worked as a shoemaker's assistant and learned firsthand about the brutal effects of the Industrial Revolution on the lives of the young men that filled German factories. He made it his life's work to better their lives and deepen their faith. The keystone of Kolping's ministry was beginning the Gesellenvereine (young workman's societies) that quickly spread around the world. Nine years after founding the first, there were 400 branches. The society today describes itself this way:

The International Kolping Society is a catholic social organization founded by Adolph Kolping. The members create a family-like and life accompanying community. The International Kolping Society promotes through education and activities the development of its members in many fields of the daily life. It consists of local Kolping families which form diocesan or regional organizations and National Kolping Societies.

There are some 5000 Kolping families today. Key to the organization's ultimate success was Koliping's ability to unite the isolated and fragmented workmen of his time. During the homily of Kolping's beatification mass, the Blessed Pope John Paul, II said:

Adolph Kolping gathered skilled workers and factory laborers together. Thus he overcame their isolation and defeatism. A faith society gave them the strength to go out into their everyday lives as Christ’s witnesses before God and the world. To come together, to become strengthened in the assembly, and thus to scatter again is and still remains our duty today. We are not Christians for ourselves alone, but always for others too.

New revolutions in technology are changing our work and our lives today. In these times, Blessed Adolph Kolping, pray for us.

Science Roundup

2011-12-04T19:18:00.001-08:00

Here are four interesting science stories about workplace dynamics:

Creative Thinkers More Likely to Cheat (for financial gain). This study suggests that creativity is positively correlated with dishonesty; at least when there is money on the line. This is one reason why I don't make wagers with artists. The other goes to ability to pay.

Abusive Bosses can Cause Marital Problems. This study quantifies an intuitive truth.

Scorpios Need not Apply: Zodiac Signs Inspire Job Bias (at one Chinese company). Ok, this isn't a science story.

Negative Employees Can be Good for Business. A study suggests that customers like to see some, but not too many, negative comments by employees on employee and company websites.

Labor and Employment Law Christmas Gift Ideas

2011-11-23T20:22:00.000-08:00

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)

2011-11-12T20:05:00.000-08:00

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.
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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.

Indirect Speech and Smithfield Foods Animation, 349 NLRB 1225 (2006)

2011-10-27T21:51:00.000-07:00

Sometimes we say one thing, but we mean to convey another message. For example, a dinner companion asks his fellow dinner companion, "Could you pass the salt?" It's an absurd question. Clearly he can pass the salt. What he really means is, "Pass the salt." In one Seinfeld episode, when George is dropping off his date, she asks if he wants to come up for a cup of coffee. George turns down the offer because he does not like to drink coffee so late...later he bemoans the fact that he turned down the coffee, realizing, "Coffee doesn't mean coffee." This phenomenon is called "indirect speech". It has been well studied by "linguists, philosophers and psycholinguists", and although not referred to by name, it has been the turning point of many a labor and employment law case.

A few years ago, Steven Pinker examined indirect speech in an intriguing article. Pinker's theory about inquiring into somebody's ability to pass the salt is interesting, but that is a subset of indirect speech that is not central to many cases. In the "pass the salt subset" it's clear what the speaker meant which leaves little room for argument. The subset of indirect speech that arises in the labor and employment law context is the "coffee doesn't mean coffee" type. This is speech that has an intended message, but is worded differently so as to give the speaker what Pinker calls "plausible deniability." This type of speech leaves practitioners parsing out whether the surface meaning of words were meant or if the words delivered a subtextual meaning.

Pinker uses a game theory example of a driver who is pulled over for speeding and wants to try to bribe the policeman. The driver doesn't know if the policeman is honest or not. If he uses direct speech, he has two options: offering the bribe or not offering the bribe. If he offers the bribe, he could wind up in jail or he could avoid the ticket. If he doesn't offer the bribe, he will certainly pay the ticket. Indirect speech gives him a third avenue where he wraps the bribe's message in plausibly deniable language.

In this scenario, the policeman can be almost certain that the driver is attempting to bribe him. But, because of the high standard of proof in criminal cases, if the driver could raise a reasonable doubt as to what he meant then he won't be convicted. Most labor and employment law situations involve a much lower burden of proof. Thus, no matter what his words may mean on the surface, the speaker will generally have to show that--more likely than not--his intended message was lawful in order to be off the hook. Plausible deniability may be enough to satisfy the burden of proof in criminal matters, but in civil matters more is needed.

In Smithfield Foods, 349 NLRB 1225 (2006), the following exchange between a labor relations consultant and an employee occurred:

[Consultant] came to [Employee] at the copy machine in mid-June15 and asked, “So, what do you think about the Union?” [Employee] said they could be better with a union and could get more respect. [Consultant] replied, “Well, I get the feeling that you don’t like the job, and if you don’t like the job why don’t you just quit.”

Was the question a threat? The Administrative Law Judge, whose opinion on the issue was adopted by the NLRB, found a violation and reasoned as follows:

The comment to [Employee] may appear weak but it does connect his feelings for the Union with Respondent’s concern that those feelings show a discontent with his job that should result in his seeking other employment. That comment tends to coerce the employee into concern for his job.

I did it um because I was hungry: Psychopath Spotting

2011-10-20T20:28:00.000-07:00

LiveScience has an interesting article called How to Spot Psychopaths:Speech Patterns Give Them Away. The article is about a study that examined the way that psychopathic murders talked about murderers they had committed versus the way that nonpsychopathic murderers talked about their murders.

The researchers looked for patterns in speech that differentiated the psychopaths. It might be hard to generalize much from the study because most of us don't talk to psychopaths about murders they've committed. When we do talk to psychopaths, who make up about 1% of the population, it's probably about more ordinary subjects. So it would be really useful if the researchers could tell us for instance, how psychopaths talk about the weather. Then we might be able to tell if we should steer clear of Sally in cubicle 3.

The researchers found that when talking about their murders, psychopaths were more likely to

Speak in the past tense (shows lack of emotional connection to the crime)
Use dysfluencies like "uh" and "um" (apparently as a "mask of sanity")
Use subordinate conjunctions, like "because" and "so that" (the murder had been logical and not emotional)
Reference basic physiological and self-preservational needs like eating, drinking, and money
Not reference higher level needs such as family or religion

The researchers are hoping to analyze social media posts looking for these kind of patterns. This could eventually lead to some kind of text recognition software doing a dragnet across Facebook, Craig's List, and who knows, maybe even Blogspot, looking for suspects. But, going back to my point about the inability to generalize the results of the study, I think they are skipping an important step. They should see if the known psychopaths demonstrate these speech patterns when they are not talking about murder; then start combing through Facebook looking for potential psychopaths if they like. Unless they are only going to focus on posts where the user talks about committing murder.

But, maybe there are some employers who want to weed out psychopaths from the hiring list or even from their current ranks. They don't want to wait for more studies or for the text recognition software to come out. They might start looking at applicants' Facebook posts for too many references to food and money, too few references to family and religion, too many "ums" and "becauses"...Would that be legal? Sorting by reference to religion would obviously be problematic under Title VII, but otherwise? Could be an ADA problem. Psychopathy is a mental disorder officially classified as "antisocial personality disorder" under the DSM IV, which means it is a probably a disability. There are only a few psychological conditions that are specifically excepted from the ADA's definition, which include, pedophilia, compulsive gambling, kleptomania, and pyromania, but not antisocial personality disorder.

Violence Declining in General, How about in the Workplace?

2011-10-16T18:14:00.000-07:00

Evolutionary psychologist Steven Pinker has an uplifting message in his new book Better Angels of our Nature: On the Decline of Violence. The good news Pinker brings us is that violence is down, way down, and trending down further yet. I haven't had a chance to read the 800 page book, but I did read the summary of his arguments here and an interview he gave about the book. The summary has some good graphs and the interview was interesting. Pinker gives various explanations for the decline, including this one:

It's partly because we care more. More and more categories of behaviors that weren't even considered examples of violence in the past are considered heinous now.
My favorite example is the recent campaign to stamp out bullying. No one less than the President of the United States gave a speech against the horrors of bullying. Twenty years ago, this would have been considered a joke. Bullying was a part of growing up. Boys will be boys. It's necessary to toughen them up; you don't want a whole generation of sissies, etc.
Now we see life from the point of view of a bullied child. We've now moved bullying from the category of ordinary childhood experience into a category of violence, and targeted it for elimination.

Here is a graph I generated with Google Insight Trends, showing the search results for "bullying" since Google's inception in 2004:

The trend of concern about bullying is not just regarding school yard bullying. Workplace bullying has been a rising topic of concern as well. Here is a graph of Google searches for "workplace bullying" in the US compared with searches for "workplace violence":

At the same time that searches for "workplace bullying" have been increasing, searches for "workplace violence" have been decreasing. This would tend to play into Pinker's general theory: severe workplace violence is in decline and now people are turning their attention to more nuanced forms of it.

That of course rests on the assumption that workplace violence is down historically. Is it?

There are of course recent examples of high profile workplace violence and certainly violence persists in many workplaces. The DOL states that 2 million workers are the victims of workplace violence each year. They have been using that same figure since 2002, and so it's hard to read a trend into it. The DOL's figures are largely made up of employees being attacked by nonemployees (robbers, customers, etc.). Certain types of workplace violence are down for sure, such as clashes between unions and Pinkerton guards. How about fights/attacks between coworkers? A lot more people with violent temperaments find themselves in jail and out of the workplace today than they did historically, so you figure that would lower the number of intra-employee fights. The growth in background checks is likely keeping the violent out of workplaces and the mere fact that background checks are conducted likely acts as somewhat of a deterrent.

This graph from a Boston Globe article shows that employees in 2008 were being killed less frequently by nonemployees than they had been in 1997, but just as frequently by other employees:

I imagine that the workers' comp attorneys would have as good of a pulse on this as anyone would. If anyone has some statistics or anecdotal thoughts on the subject, please drop a comment or send me an email.

Lafe Solomon on NPR Discussing Social Media

2011-10-13T18:21:00.000-07:00

The NLRB's Acting General Counsel, Lafe Solomon was on NPR discussing social media cases with Jon Hyman and others. Hyman has an adobe player with the show here. Solomon comes on at about 16:10 and remains in the discussion until about 34. It's an interesting listen. I agree with the title of Hyman's post: Social Media and Privacy Cannot Coexist. Worlds collide. Because social media is causing our private lives to be out in the open, it's more important than ever for employees to be educated about the ways in which employers can and cannot discriminate against them.

Black Swan's Intern Problem

2011-09-29T18:49:00.000-07:00

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

2011-09-28T15:11:00.000-07:00

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?

2011-09-27T20:18:00.000-07:00

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

2011-09-26T05:37:00.000-07:00

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?

2011-09-23T21:27:00.000-07:00

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?

2011-09-22T20:26:00.000-07:00

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

2011-09-20T20:15:00.000-07:00

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

2011-09-16T05:45:00.000-07:00

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

2011-09-15T22:25:00.000-07:00

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?

2011-09-13T19:44:00.000-07:00

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

2011-09-12T19:22:00.000-07:00

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

2011-09-11T19:51:00.000-07:00

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

Lone Star Blues

2011-09-09T15:14:00.000-07:00

In the tradition of John Phillips, here is my LaborRelated song of the week. I warned you that things could get Texocentric around here, and so you shouldn't be surprised to see Lone Star Blues as my pick. The song is a ballad about a guy who has trouble with employment throughout the state. First he does a little bull riding in San Angelo but gets disqualified. Then he gets laid off from Brown & Root and heads back to the town of Cut and Shoot, on the way he loses it all gambling. He tries in vain to find a job working cattle. He gets some part time work in construction. Eventually he heads to Fort Worth where he bounces at the world's largest honky tonk and gets hit in the head with a motorcycle chain. He ends up with a permanent and possibly compensable injury.

Seinfeld Redux

2011-09-08T19:11:00.000-07:00

Thanks to the folks at American University Labor Law Forum for linking to my Seinfeld post. They've got a good website over there and consistently put together a valuable publication.

With that encouragement, I'll note that since posting, a friend reminded me of The Race, Episode 96, where Kramer and Mickey take jobs as Santa and an elf at Coleman's Department Store.

Kramer complains to Mickey about the work:

KRAMER: Hey, Mickey when do we get a break? My lap is killing me.
MICKEY: There is no break.
KRAMER: This place is a sweat shop.

Elaine's communist boyfriend, Ned talks shop with Kramer while visiting the mall:

KRAMER: Eight hours of jingle belling and ho ho hoing. Boy, I am ho'd out.
NED: Anyone who works here is a sap.
[Mickey attacks Ned]
MICKEY: Watch it!
KRAMER: Whoa, whoa, come on.
NED: You understand the Santa's at Bloomfields are making double what you are?
KRAMER: Double?
NED: I bet the beard itches doesn't it?
KRAMER: You got that straight.
NED: So when you get a rash all over your face in January do you think Coleman's will be there with a medical plan?
MICKEY: Look, you take that commie crap out into the street.
NED: Kramer, I've got some literature in my car that will change your whole way of thinking.
KRAMER: Talk to me baby.
MICKEY: Don't listen to him Kramer, you've got a good job here.

Eventually, Kramer adopts Ned's communist views and tries to enlighten a young child.

KID: I want a racing car set.
KRAMER: Ho ho ho ho A racing car set! Those are assembled in Taiwan by kids like you. And these Coleman pigs, they sell it at triple the cost.
KID: But I want a racing car set.
KRAMER: You see kid, you're being bamboozled. These capitalist fat cats are inflating the profit margin and reducing your total number of toys.
KID: Hey, this guy's a COMMIE!
MICKEY: Hey, kid, quiet. Where did a nice little boy like you learn such a bad word like that? Huh?
KID: Commie, Commie, Commie . . . (unknown) .
MICKEY: Santa is not a Commie. He just forgot how his good friend stuck his neck out for him to get him a good job like this. Didn't he Santa!
STORE MANAGER: Is there a problem here?
KRAMER: ho ho ho ho.
KID: This guy's a Commie. He's spreading propaganda.
STORE MANAGER: Oh yeah? Well that's enough pinko! You're through. The both of ya'
MICKEY: I got two kids in college.
KRAMER: You can't fire me, I'm Santa Claus.
STORE MANAGER: Not anymore. Get your skinny ass out of here.

The episode brings to mind several questions.

1. Can the store manager legally fire Kramer for being a communist? Although there are no federal laws protecting employees on the basis of political orientation, New York (where the show takes place) joins the District of Columbia and Puerto Rico in offering some employment protections on the basis of political activities. In addition, some cities have similar protections. However, whatever protections are out there, Kramer's communist activities seem antithetical to the goals of the department store which include selling stuff like racing car sets and keeping kids happy in Santa's lap. On the other hand, the statement made by the store manager, "enough pinko" might be construed as demonstrating a certain level of animus...

2. Can the store manager legally fire Mickey for Kramer's communist activity? Mickey's firing is certainly less fair than Kramer's, but he might in some ways be less protected because he is not being discriminated against for his own political activity.

3. How about the parting comment, "Get your skinny ass out of here?" Typically, Santas are a little on the heavy side, and so Kramer might claim that in addition to being discharged based on his political affiliation, he was discriminated on the basis of being skinny. In the state of Michigan and some cities, but not in New York, it's unlawful to discriminate on the basis of weight (fat or skinny).

4. Can they make Kramer and Mickey work without breaks? Check with the New York Department of Labor.

Facebook Firing - ALJ Decision Issues

2011-09-04T13:44:00.000-07:00

On Friday, an administrative law judge issued a decision in Hispanic United of Buffalo. This is the first NLRB ALJ decision that hinges on whether employees' activity on Facebook was protected. The previous NLRB social media decisions have been on the General Counsel's side of the agency and have involved only the decision of whether to issue complaint (whether to prosecute). The ALJ concluded that five employees were unlawfully fired for protected activity that included posting on Facebook. The employer has the right to appeal the ALJ's decision to the ~~five~~ three member Board.

Some snippets from the judge's analysis:

Respondent concedes that the sole reason it discharged the five discriminatees is the
October 9 Facebook postings. It also concedes that regardless of whether the comments and actions of the five terminated employees took place on Facebook or “around the water cooler” the result would be the same. Thus, the only substantive issue in this case, other than jurisdiction, is whether by their postings on Facebook, the five employees engaged in activity protected by the Act. I conclude that their Facebook communications with each other, in reaction to a co-worker’s criticisms of the manner in which HUB employees performed their jobs, are protected...

...Employees have a protected right to discuss matters affecting their employment
amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that [a coworker] might take her criticisms to management. By terminating the five discriminatees for discussing [a coworker's] criticisms of HUB employees' work, Respondent violated Section 8(a)(1).

The ALJ's decision is here. The General Counsel's memorandum about social media cases is here.

Seinfeld and Labor and Employment Law

2011-09-03T13:15:00.000-07:00

Since posting about the Information Age causing "worlds to collide", I get a fair number of visitors who search Google for things like "George Costanza and Employment Law." I feel bad because I don't think my post is what they had in mind. A lot of Seinfeld episodes touched on work situations, and so it's not surprising to see these kinds of searches. To try to give those visitors a post more in line with what they were searching for, here are some Seinfeld episodes that touch on labor and employment law subjects and a little bit of comment from me.

Kramer at Work

Episode: The Strike (Epidsode 166)

Plot: Kramer returns to H&H Bagels after striking for twelve years. The strike ends when the minimum wage rises to the wage that the employees had demanded when the strike began. Kramer returns to the bagel shop where the manager tells him that he needs help over the holidays and hires him. Kramer subsequently becomes interested in Frank Costanza's Festivus holiday. Wanting to celebrate Festivus, Kramer asks for December 23 off. The manager explains that he hired Kramer specifically for the holidays, Kramer says that his rights are being violated and walks out.

Comment: This episode raises two issues: the strike and religious accommodation.

The Strike. It appears that this was an economic strike rather than an unfair labor practice, thus

Kramer was not necessarily entitled to immediate rehire. Do strikes ever go twelve years? It's rare, but it has happened before. A strike at Diamond of California lasted thirteen years.

Religious Accommodation. Kramer has two problems here: First, he has to demonstrate a strongly held religious belief that requires him to miss work on the day in question. At this point, it looks like Kramer is interested in Festivus, but it's hard to say he had a strong belief about it. The second problem is that Kramer was hired specifically for the holiday season and so H&H can argue that giving him the day off would be unduly burdensome.

Elaine at Work

Episode: Friar's Club (Episode 128)
Plot: A deaf employee is hired at J. Peterman. The deaf employee (perhaps conveniently) fails to hear when work is assigned to him, and Elaine is repeatedly stuck with extra work. Antics ensue.
Comment: Unlike other forms of discrimination, there is no "reverse discrimination" under the ADA. Thus, Elaine can't claim to be discriminated against on the basis of not being disabled.

Jerry as an Employer

Epidsode: The Maid (Epidisode 175)
Plot: Jerry hires a maid for his apartment. Jerry and his maid begin an affair. Eventually the maid no longer cleans his house, but still wants to be paid. Jerry refuses to pay as he wonders what he is paying for.
Comment: The episode raises an interesting point in a quid pro quo sexual harassment situation. If the employee stops doing his/her job functions, but continues to be paid, are criminal prostitution laws implicated?

George at Work

Episode: The Red Dot (Episode 29)

Plot: George drinks scotch at work with a cleaning woman after hours and the two consummate an affair in the office. The cleaning lady gets upset and threatens to tell the boss about what happened. To pacify her, George gives her a cashmere sweater with a red dot on it. Once she discovers the dot, the cleaning woman reports George and he is fired.

Comment: As is often the case, George provides the audience with good examples of how not to behave. George may well have created a hostile work environment and his attempt to buy off the woman was both inappropriate and inept.

Episode: The Boyfriend (Episode 34)

Plot: George tries to extend his unemployment benefits by making up a company, Vandelay Industries, and telling the unemployment officer that he is close to a job there. George involves Jerry in the scheme by providing Jerry's number as the number of the fictitious company.

Comment: Here's what the State of New York has to say about unemployment fraud:

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI taxes on law-abiding businesses, and it frustrates honest workers. We need every dollar to help those who honestly need these benefits.

Episode: The Barber (Episode 72)
Plot: George interviews for a job. It seems like he is about to be offered the job but the interviewer suddenly has to leave. George is left uncertain as to whether he has the job or not. He decides to show up and start working. George is handed a file to work on, but has no idea what he is supposed to be doing. Eventually, he meets the client whose file he is working on (Penske). Penske seems to offers him a job, but is likewise interrupted before the conversation is finished. In reliance upon Penske's offer, George quits in order to take it. However, Penske has been indicted and the company can't hire anyone.

Comment: In the ordinary circumstance, it is easy to know when an employment relationship has begun, but as in other contract scenarios, offer and acceptance aren't always clear.

Episode: The Maestro (Episode 113)

Plot: George decides that he should help a security guard who works at his fiance's uncle's (Mr. Ross) store and must stand all day. George gives the guard a chair and the guard asks if it is all right by Mr. Ross. George explains to him that he is the owner's uncle and says not to worry about it. The guard is later asleep when the store is robbed.
Comment: Whether a person has the authority to speak on behalf of an employer is not always clear.

Episode: The Millennium (Episode 154)
Plot: George is working for the New York Yankees and gets recruited by the New York Mets to be their head scout. The Mets tell George that they can only hire him if he gets fired from the Yankees. George tries to get fired by wearing and getting food on Babe Ruth's jersey, pseudo streaking through a game, and finally trying to destroy a World Series Trophy by dragging it with his car. His boss claims responsibility for the trophy incident, gets fired and takes the Mets job.

Comment: The teams seem to have an interesting "no raid" pact. George and the Mets recruiters demonstrate what bad faith is all about.

Episode: The Butter Shave (Episode 158) and The Voice (159)

Plot: Recovering from an accident, George is walking with use of a cane. He is hired at Play Now apparently because of the cane. Play Now, thinking George has a disability, provides him with a personal, fully equipped wheel chair accessible bathroom. When George sprains his good leg, Play Now buys him a motorized cart as a result. George runs into trouble with legitimate cart riders and after being chased by them, picks up his cart and runs. George's boss sees him running with the cart. Play Now wants to fire George since they know he has been faking his disability. However, George has a one year contract and try as they may, Play Now cannot make the work environment hostile enough to drive George out. It all ends when George allows Kramer to drop a ball full of oil from his office window. The oil injures Jerry's girlfriend and the lawsuit puts Play Now out of business.
Comment: Is ficitious disorder/Münchausen syndrome a disability itself?

Seinfeld Audience at Work

Episode: The Junior Mint
Plot: Jerry does not know his girlfriend's name, but knows that she was teased about it in school.
Comment: From Wikipedia:

A conversation in Milwaukee the day after the episode aired led to a lawsuit in which jurors awarded Jerold J. Mackenzie $26.6 million on July 15, 1997. Mackenzie was terminated by Miller Brewing Co. on the basis that, amongst other reasons, discussing the episode with his secretary constituted sexual harassment.^[2] Later, however, the decision was overturned by the court of appeals, and the ruling of the appeals court was affirmed by the Supreme Court of Wisconsin.^[3]

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One more episode on a subsequent post: The Race, Episode 96.

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Apparently a CLE seminar was once offered on (non-labor and employment) legal issues from the Seinfeld series.

Texocentric Postings

2011-08-18T21:44:00.000-07:00

In the future you may notice more Texocentric blog posts. That's because while LaborRelated exists on the World Wide Web (a series of tubes), this blogger has relocated to Texas. My family and I have been in the DFW area before and it's good to be back. I'm happy to join the labor and employment law blogging community of Texas where two bloggers that I've been following for years are based: Michael Maslanka of Work Matters, and Michael Fox of Jottings by an Employer's Lawyer. Please recommend any other Texas labor and employment blogs.

So, in honor of being in Texas, here is a song, Corpus Christi Bay, from a Texas musician, Robert Earl Keen. The song really is more about brothers and drinking than about labor and employment law, but it does have a work theme and includes a mention of a union.

And in case you were wondering, John David's favorite part about moving to Texas? Moving boxes!

Strange Strike

2011-08-18T21:00:00.000-07:00

The New York Times reports on a very strange strike. The striking workers were foreign students holding J-1 visa who came to work for two months and travel for a while. They were working as temporary workers for a Hershey contractor in Palmyra, PA. From the NY Times description, they seemed to be wealthier students from poorer nations who had paid between $3500 and $6000 for the opportunity to come to America, practice English, make money for two months and travel. Some of the students were studying things like medicine in their home countries and did not go for being paid (after deductions for housing and fees) $200/week for manual labor.

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.

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."