Plaza Auto Redux

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

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.

Furor Over DSM-V (DSM-5)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.