New Devices, New Injuries

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

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

An Example of Fax Rage

Seinfeld Redux

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.

Seinfeld and Labor and Employment Law

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.

Update: Jon Hyman notes that a recent case Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), addresses the issue of whether George could have sued the employer for sexual harassment based on his firing. 
 

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.

Strange Strike

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.

DC Circuit affirms NLRB in Kiewit, cites youtube

In November, I posted about Kiewit Power Constructors, 355 NLRB No. 155 (2010) and included an animation I made of the case.  Today, the DC Circuit affirmed that decision with style.  Judge Griffith's opinion is quite colorful; you've got to love the way that he brought hockey fights and basketball drives into this already interesting subject matter.

The judge framed this Atlantic Steel-line case this way:

When Kiewit Power Constructors Company warned its electricians that their morning and afternoon breaks were too long, two of them responded that things would “get ugly” if they were disciplined, and one said that the supervisor had “better bring [his] boxing gloves.” Each was fired. The National Labor Relations Board (NLRB) reinstated both workers, finding that in context their statements were not physical threats, but were merely figures of speech made in the course of a protected labor dispute.

The Court affirmed the Board, reasoning,

To state the obvious, no one thought that Judd and Bond were literally challenging their supervisor to a boxing match. Once we acknowledge that the employees were speaking in metaphor, the NLRB’s interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course, is a matter of context. Compare, e.g., http://www.youtube.com/watch?v=3NklthJ7foI (last visited July 6, 2011) (the Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky), with http://www.youtube.com/watch?v=1xMgbhl2DAk (last visited July 6, 2011) (describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election), and Jonathan Weisman, Obama’s Gloves Are Off — And May Need to Stay Off, WASH. POST, Apr. 23, 2008, at A1. Indeed, such metaphors are part and parcel of competitive spirit. See http://www.youtube.com/watch?v=R6mqFMdhDe4 (describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of longrange proficiency and acrobatic drives).

 Yep, that was a series of citations to Youtube, see below.

...To be sure, Judd and Bond’s statements were intemperate, but they did not involve the kind of insubordination that requires withdrawing the Act’s protection. It would defeat section 7 if workers could be lawfully discharged every time they threatened to “fight” for better working conditions. See Sw. Bell Tel. Co., 694 F.2d at 978 (upholding NLRB’s determination that employee’s repeated statement—“I’m going to see that [expletive] fry”— was “at most . . . ambiguous,” [...]); Vought Corp., 273 N.L.R.B. at 1295 (employee’s statement to supervisor that “I’ll have your ass” was no more than a threat to file a grievance or to report the supervisor to higher management), enforced, 788 F.2d 1378 (8th Cir. 1986).

I guess in the interest of full disclosure, I should mention that years ago I worked as a laborer for Kiewit Construction.  I never had any problems and I learned a lot in my short stint, but "bring your boxing gloves" is a lot milder than some of the expressions that were thrown my way...   

Here is my animation followed by the youtube clips the judge cites:


 My animation, based loosely on the case.



"Capitals’ Alex Ovechkin literally dropping gloves to fight the Rangers’ Brandon Dubinsky"


Sorry, can't embed this one, but here is the link
http://www.youtube.com/watch?v=1xMgbhl2DAk
  "describing Vice Presidential candidate Sarah Palin as promising that the “gloves are coming off” in the 2008 election"



"describing college basketball phenom Jimmer Fredette as “destroy[ing]” an opponent with his combination of long-range proficiency and acrobatic drives"