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

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.

Violence Declining in General, How about in the Workplace?

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.

Parable of the Vineyard Workers

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

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

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

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

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

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

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

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

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

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

Strippers ruled Employees not Independent Contractors

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

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

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

Is Protective Activity Protected?

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

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

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

According to the Consumerist:

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

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

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