Monday, November 30, 2009

Employment Blawgs in 2009 ABA Blawg 100

The ABA Journal released its annual Blawg 100 for 2009! Sadly, the list does not include Lawffice Space. I assume it's because I've only been blogging for a few months (I mean, that's the only possible explanation, right?). In all seriousness, the list is pretty solid and includes a lot of great blogs I read pretty regularly.

I would like to take a moment to recognize the employment law blogs that have staked out well-deserved spots on the list:

Connecticut Employment Law Blog by Dan Schwartz - I have left a few comments for Dan and he is always quick to reply or shoot me an email. He's also a prolific twitterer (tweeter?) and equally interactive in that forum (@danielschwartz).

Delaware Employment Law Blog by Molly DiBianca - This is another one I read pretty regularly. It is particularly noteworthy for its excellent taste in employment law blogs (naming Lawffice Space to its Top 100 Employment Law Blogs). Also on Twitter (@MollyDiBi).

Work Matters by Michael Maslanka - This blog does a great job of providing labor and employment law lessons from unlikely sources. A lot of employment law blogs cover the same ground; Work Matters has a style all its own. Also on Twitter (@worklawyer).

That's What She Said - They write case assessments, including an estimated litigation value, for every episode of The Office. Obviously this is awesome and needs no further explanation.

The Client Revolution is in the Blawg 100 but not technically an employment law blog. It is run by Jay Shepherd (Shepherd Law Group - "The nation's only employer law firm to price by client value instead of hours") who also authors Gruntled Employees. Also on Twitter (@jayshep).

Hmmm, I'm noticing a correlation between the folks I recognize from Twitter and the blogs on the Blawg 100. Anyways, it's great to see some employment law blogs make the cut. Congratulations to all!

Saturday, November 28, 2009

eBay Justice - Online Dispute Resolution

Quick, how many ways to formally resolve employment disputes can you name? Let's see... civil litigation in state courts, federal courts, mediation, arbitration, federal enforcement agencies (EEOC), state enforcement agencies (PHRC), local enforcement agencies, and pre-dispute contractual arrangements. Did I miss any? I'm sure I missed several, but one I intentionally omitted was Online Dispute Resolution.

Online auction site, eBay, has been using the "wisdom of crowds" for years. One important feature on eBay is the ability of customers to leave publicly accessible feedback on sellers. Then eBay aggregates the data to help buyers make a decision. Examples include: 100% Positive Feedback, Top-rated Seller, and Ships Items Quickly. Of course, not all feedback is so glowing.

The sellers on eBay vary from one-item sellers, to casual hobbyists, to full-on Internet retailers. Given that some of the sellers use eBay as their actual career, the feedback can be extraordinarily important to their livelihood. So what happens when someone leaves feedback that the seller believes is unfair? Is there any recourse or must the seller rely on honest (presumably positive) feedback to set the record straight?

eBay India offers sellers another option: eBay Community Court. The online dispute resolution system employs a straightforward four-step process:
  • Start Appeal - Seller writes why the negative feedback is unfair;
  • Collect Views - Person who left the review is asked to justify their comments;
  • Jury Voting - A group of 21 online eBay users votes on whether the feedback should be removed; and then
  • Final Decision - If the jury votes in favor of the seller, eBay will remove the negative feedback.
It's brilliant in its simplicity! It also employs a similar structure to that used by our courts: one side presents its case; the other side presents its case; the jury decides; and the authorities enforce the verdict.

Is this the future of dispute resolution? Perhaps the online marketplace is a more receptive (and more appropriate) venue than the more personal workplace. Many employment issues are also far more serious than "unfair negative feedback" from a customer. For example, I don't recommend that employers send their sexual harassment complaints to an online jury of co-workers... but we could see Online Dispute Resolution creeping into our already vast array of justice systems.

HT: Hon. Bruce T. Cooper, Online Dispute Resolution Comes of Age(.pdf), The Practical Litigator, July 2009.

Image: A photograph of eBay's Whitman Campus by Stephen Arnold, available here on Wikimedia Commons.

Thursday, November 26, 2009

Thanksgiving as a Federal Holiday

By Sharon R. Miles

Whether you get your fill of turkey, parade floats, or football; time to sleep in or time with family and friends; a reminder to give thanks; or all of the above - one thing remains constant: you get a federal holiday every fourth Thursday in November.

While Thanksgiving has been a tradition since the country was first settled, it did not become a federal holiday until 1941. Prior to 1941, the date on which Thanksgiving was celebrated varied. For example, Continental Congress designated one or more Thanksgiving celebrations each year during the Revolutionary War. Thanksgivings were declared in 1798 and 1799 by President, John Adams, but Thomas Jefferson did not declare any during his Presidency. The tradition was renewed by James Madison in 1814 as a result of Congressional resolutions presented at the conclusion of the War of 1812.

It was President Lincoln who designated a national Thanksgiving Day for the last Thursday in November in 1863 during the Civil War. Since then, Thanksgiving has been celebrated annually and his successors continued with the celebration on the last Thursday every November. However, in 1939 there were five Thursdays in November and President, Franklin D. Roosevelt deemed the fourth Thursday for Thanksgiving. And, in 1940 and 1941, years where November had four Thursdays, Roosevelt designated the third for the holiday. Many believe that Roosevelt made this change thinking that with an earlier Thanksgiving, there would be more time for holiday shopping. The country was in The Great Depression, and at that time, advertising prior to Thanksgiving was considered tactless.

It wasn’t until 1941 that Congress passed and Roosevelt signed the bill making Thanksgiving the federal holiday as we know it today; celebrated annually on the fourth Thursday in November, regardless of how many Thursdays fall in November that year. This year, we celebrate Thanksgiving on November 26, exactly 220 years after George Washington issued a presidential proclamation marking the first Thanksgiving holiday in the newly formed United States of America.

Here’s to wishing you a Happy Thanksgiving (and Thank You for reading Lawffice Space)!

Note: Many employers give their employees the Friday after Thanksgiving off from work as well. Often referred to as Black Friday, many retailers mark this day as the start of the holiday shopping season.

Image: Sketch of Thanksgiving in camp during U.S. Civil War on Thursday, November 28, 1861 by Alfred R. Waud; obtained through Wikimedia Commons - Public domain, Library of Congress.

Monday, November 23, 2009

First Amendment Unemployment Compensation: Sherbert v. Verner

Tonight's entry marks the first in a planned series of posts on first amendment protections for private employees through unemployment compensation law. The series is inspired by a recent post on The Volokh Conspiracy. In short, a November 16, 2009 Magistrate Judge's report (Griffin v. N.H. Dept. of Employment Security (.pdf)) found that the First Amendment protects, in an unemployment compensation decision, an employee terminated by a private employer for his speech.

Generally, private employers can not violate the First Amendment. States, however, can violate the First Amendment (as a side point, the First Amendment applies to the States through the Fourteenth Amendment). We deal here with the confluence of the two: state unemployment compensation benefits decisions resulting from the termination of private employment.

First, let's back up a little bit. Prof. Volokh says, "If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner [374 U.S. 398 (1963)]." Don't mind if I do!

The case involves a Seventh-day Adventist terminated by her South Carolina private employer because she refused to work on Saturdays due to her religious beliefs. Remember that the First Amendment does not generally apply to private employers. Note that this Supreme Court opinion was handed down in 1963 so don't even think about Title VII analysis. So far, everything seems lawful.

She was then unable to find employment because she was unavailable to work on Saturdays... so she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act. Alarm bells! We have our first state action, the UC Act. The state law required that the claimant be "able to work and . . . available for work." The claimant was therefore denied unemployment compensation benefits, and that's where the Supreme Court finds a Constitutional problem.

The Court noted:
"Here, not only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable."
The Supreme Court held the denial of unemployment compensation benefits imposed an unconstitutional burden on the free exercise of religion.

The reason for the claimant's termination was her refusal to work on Saturdays for religious reasons... but this was not the Court's basis for finding a Constitutional infringement. Rather, the Court took exception to the imposition of a state law requirement, not the private employer's requirement, that the claimant be available on Saturdays.

To me, this distinction is crucial. But as we shall see in future posts, the courts have not necessarily shared this view. How do we go from applying First Amendment protections to claimants regarding state law requirements in Sherbert in 1963... to applying the same analysis to the private employer's reason for termination in Griffin in 2009? Also, how do we go from the Free Exercise Clause to the Free Speech Clause? Answers forthcoming.

Saturday, November 21, 2009

DoL Calls for Wage and Hour Reinforcements

The Blog of Legal Times (aka BLT) reports that the Department of Labor (DoL) hired an additional 250 wage and hour investigators. And you thought no one was hiring! Secretary of Labor Hilda Solis (pictured) made the announcement on Thursday. The new hires represent a one-third increase in staffing. So what does this mean for employers?

The Wage and Hour division administers the Fair Labor Standards Act (FLSA)(.pdf). In short, the FLSA requires:
  • A national minimum wage of $7.25/hour; and
  • Overtime pay of one-and-a-half times the regular rate of pay for hours worked beyond 40 hours/week (any 168 hour period).
I don't think anyone will be shocked to learn that it's actually much more complex than a two-point wage requirement. There are numerous exceptions, exemptions, and other mandates. Of course, there are also state and local laws, most notably state minimum wage laws (list of state minimum wages).

If employers aren't familiar with these complexities, it's time to figure them out. I'm pretty sure those 250 new investigators aren't just for show. The DoL provides online Compliance Assistance to help employers (and inform employees). Believe me, that will be better than the other "compliance assistance" that comes when the investigators knock on your door!

Image: Secretary of Labor, Hilda Solis - Official Portrait from Department of Labor, public domain image.

Thursday, November 19, 2009

GINA Homework

The employment provisions of the Genetic Information Non-Discrimination Act (GINA) take effect on November 21, 2009... in other words, Saturday! Sounds like everyone has some homework to do over the weekend. Here is a brief list of suggested reading:
If you're still searching for more, a Google Blog Search yields about 3,000 results!

Tuesday, November 17, 2009

Expert Statistical Analysis in $6.2 Million Age Discrimination Suit

Last Tuesday, a federal jury awarded two scientists more than $6.2 million in an age discrimination suit. Pennsylvania chemical company, PQ Corp., fired the pair of scientists when the company allegedly targeted older workers in 2005 layoffs. The ginormous numbers represented a combination of $3.5 million in compensatory damages for emotional damages, and a doubling of the back-pay award due to a finding of "willful" discrimination.

The plaintiffs utilized a statistical expert to examine liability issues regarding the layoffs. I am pleased to announce that I have obtained guest commentary from that very statistical expert! Stephanie R. Thomas is the Director of the Equal Employment Advisory and Litigation Support Division at Minimax Consulting, LLC. She was kind enough to provide Lawffice Space with a brief description of her work on Marcus, et. al., v. PQ Corp.:
"My analysis focused on the eight terminations within the Research and Development (R&D) workforce of PQ. I used an age-protected definition of age 55 and older, rather than age 40 and older, because the allegations in this matter were that individuals over age 55 were targeted.

At the time of the May 2005 terminations, approximately 30% of the R&D workforce was age 55 and older. 8 of the 8 (100%) terminated individuals were age 55 and older. My analysis statistically compared the actual and expected number of age 55+ terminations. I testified to five different statistical analyses. I performed an analysis of the R&D workforce as a whole, as well as four additional analyses controlling for different termination explanations offered by PQ:

(1) within the R&D workforce as a whole;
(2) controlling for Corporate Development Group membership among the R&D workforce;
(3) controlling for Corporate Development project funding source within the R&D workforce;
(4) controlling for whether an individual received any funding via terminated Corporate Development projects within the R&D workforce;
(5) controlling for whether an individual received 100% of his/her funding via terminated Corporate Development projects within the R&D workforce.

In all of the above analyses, I found a statistically significant surplus of older workers selected for termination. The findings of my analyses were consistent with the hypothesis that the termination decisions made by PQ in May 2005 were associated with the age of the employee."
Statistical analysis can be crucial in employment discrimination claims. For more on statistical analysis in employment law, follow Stephanie R. Thomas on Twitter or check out her blog, The 80% Rule and Other Fallacies.

Monday, November 16, 2009

No Wonder They're in State Court!

A brief update to my post last week about the surprising news that EEOC age bias complaints are down in 2009. That post included a quote from an incredulous attorney who claimed age bias claims were actually on the rise, they were just in state courts instead of federal courts.

Well, today I came across some numbers in The Manpower Employment Blawg:
"Employers are better off in federal court, where they won 43% of the cases, versus only 37% in state court. In addition, the median federal award was 39% lower than the median state award ($164,925 versus $270,000)."
Or taken from the employee's perspective... a better chance of winning and more money. No wonder employees are seeking out state courts!

Endnote: The stats are not limited to age bias claims. Manpower got the numbers from Jury Verdict Research's latest study available for purchase here.

Saturday, November 14, 2009

Wash Your Hands - Redux

Over the summer, I posted an entry espousing the benefits of hand-washing. I've also done a series of posts highlighting employment-related topics in Super Freakonomics. Little did I know that there would be some overlap between the two.

As it relates to current events, washing your hands can help prevent the spread of H1N1, but it also helps prevent the spread of numerous other illnesses. In the case of medical professionals, washing their hands can literally be a matter of life or death for their patients. In Super Freakonomics, the authors reveal that medical workers (particularly doctors) are not particularly good at washing their hands.

The authors describe an effective method employed by Cedars-Sinai. The medical center set the computer screensavers to pictures of bacteria-laden hand cultures taken of physicians' hands. The book reports that hand-hygiene compliance "shot up to nearly 100 percent." The Freakonomics blog reports that "Clean Hand programs are now the norm at hospitals."

Admittedly, the audience at a hospital may be more responsive to a bacteria culture than the average, say accountant (as an example). But perhaps there is something to this screensaver thing. Maybe it's "wash your hands to help stop H1N1" one day, and "ummm, yeah, we're putting new cover sheets on all the TPS reports*" the next. The possibilities are endless!

Sidenote: ABC posted a 20/20 video showing the actual hand-culture screensavers. It also includes an interview with the Super Freakonomics authors, the dangers of dirty neckties, and disturbing footage of a woman with a flesh-eating disease in her stomach.

* That's a reference to the movie Office Space.

Wednesday, November 11, 2009

Happy Veterans Day!

By Sharon R. Miles

Today, November 11, 2009, commemorates the celebration of Veterans Day, the annual, federal holiday honoring all veterans who have served in the U.S. armed forces… and currently a trending topic on Twitter! Veterans Day is typically observed on November 11. However, if November 11 falls on a Sunday, the federal government designates the following Monday for holiday leave. If November 11 falls on a Saturday, then either Saturday or Friday may be designated for employee leave.

Veterans Day takes its roots in the signing of the armistice treaty, signifying the end of World War I. The armistice treaty was signed between the Allies and Germany in 1918, at the eleventh hour of the eleventh day of the eleventh month. President Woodrow Wilson declared an Armistice Day for the following year, November 11, 1919 and in 1938, Congress passed an Act (52 Stat. 351; 5 U.S. Code, Sec. 87a), proclaiming November 11 of each year a federal holiday, "a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as 'Armistice Day'."

Fifteen years later, inspired by his work with American War Dads during WWII, Al King, a shoe store owner from Emporia, Kansas, actively started a campaign to evolve the holiday into a day commemorating all veterans, not only those who served in WWI. As a result, a bill was pushed through Congress and signed into law by President Dwight Eisenhower in May of 1954, and in November of that same year, Congress amended the act to replace “Armistice” with "Veterans." Since then, the day has been known as Veterans Day in the United States.

Where and how we decide to celebrate Veterans Day is a personal choice. I hope each and every American takes a moment to remember those men and women who have fought and continue the fight to defend our country, here and abroad. I want to take this moment to extend my gratitude to all veterans. I also want to give special thanks to my dad, a former naval officer who served two tours in Vietnam. THANK YOU.

Sidenote: An explanation for why there is no apostrophe in Veterans Day.

Image: Library of Congress Public Domain: Crowd at burial ceremony of the Unknown Soldier in Arlington Cemetery, 1921 or 1922.

Tuesday, November 10, 2009

Philadelphia Field Trip

Over the weekend, my wife and I attended a wedding in Philadelphia, Pennsylvania. Although I've been there dozens of times, this was the first time I checked out the historic sites. What does this have to do with employment law?

Well, the Declaration of Independence was approved and signed there in Independence Hall (see my photo top left) in 1776. The Declaration includes the right to the "pursuit of happiness" which I dubbed America's First Employment Law. Though in retrospect, perhaps the "United States' First Employment Law" would be more accurate.

The Constitution was also "born" there in 1787. And, as we all know, the Constitution is the "supreme law of the land." U.S. Const. Art. VI cl. 2.

To see more pictures (24 photos) from our tour of Philadelphia's historic sites, check out the Lawffice Space Facebook Fan Page.

Monday, November 9, 2009

Age Bias Complaints... Falling!?

It was a foregone conclusion that age discrimination claims were going to rise in 2009, wasn't it? I mean, just the other day there were reports of discrimination reports "flooding" the EEOC. A chart of EEOC data shows across the board increases for all types of discrimination in 2008 with age discrimination claims shooting up 29% last year. With the economy getting even worse, the numbers just had to rise, right?

Imagine my surprise when I open my morning email from the National Law Journal to see an article titled, EEOC says age bias complaints declining after all; litigators dubious. The shocking news:
"The EEOC said Friday that it is preparing to release statistics indicating that age discrimination complaints declined by 7% in 2009."

Before employers breathe a sigh of relief, however, they should consider a couple things. First, there's the state court effect:
"'I can tell you that age discrimination cases have risen over the last year, and most of them are not in federal court, they're in state court. That's the reality,' said Vincent Cino, national director of litigation at Jackson Lewis, a national employment firm that represents management."
Then there are the still-high EEOC numbers. There were 19,103 age discrimination complaints in 2007 and 24,582 in 2008. Using the reported 7% decline from 2008, that would still be 22,861 in 2009... about a 20% increase from 2007!

I'll be sure to cover the new EEOC stats when they're released. What can I say? I like numbers.

Breaking News: The EEOC has a new web site!

Friday, November 6, 2009

Omnibus Legislative Update

There’s been no shortage of news on the legislative front of the world of employment law. There’s so much that I’m doing a brief omnibus blog entry to close out the work week.

- Congress passed a bill (98-0 in the Senate and 403-12 in the House) to extend unemployment benefits (incidentally, it also extends the first-time homebuyer’s credit). AFP reports:
“The legislation allows workers in all 50 US states to get 14 more weeks of unemployment benefits, while those in states with jobless rates over 8.5 percent would be able to draw an additional six weeks for a total of 20.”
News breaking that Obama just signed it today.

- George Miller (D-CA) introduced a bill that would direct “employers to pay for up to five days' sick leave for workers they send home because they have contracted the H1N1 virus.” WSJ reports that it's not clear whether the bill has the "support of House leadership or Senate Democrats."

- And then there’s some health care bill floating around that you haven’t really heard much about… unless you have television, radio, or access to the Internet. A vote on the health care bill appears imminent.

All of this is set against a backdrop of just-announced 10.2% unemployment with nearly 16 million unemployed.

Sidenote: My sources today are AFP, CBSNews, WSJ, and FoxNews... how's that for media diversity?

Wednesday, November 4, 2009

Lawffice Space in Top 100!

The Delaware Employment Law Blog released its Top 100 Employment Law Blogs (plus 10) for 2009 today. Guess who made the cut? Oh, you cheated! It's right there in the title of this entry. Yup, Lawffice Space in just its first year of publication was recognized as one of the Top 100 (plus 10) employment law blogs. A big "Thank You" to Molly DiBianca who compiled the list.

Monday, November 2, 2009

EEOC and State Agencies Surge

Corporate Counsel featured an article today by Tresa Baldas, Employers Under Siege: Discrimination Complaints Flooding into EEOC. The article details a surge in discrimination claims filed with the EEOC in 2008, up 28% from 2007. Of course, readers of this blog already knew that (if you don't like numbers, I even made a picture... well, a chart of EEOC claims data.) Retaliation claims are also up 22%.

The article provides some nice insight into 2009 to tide us over until the final numbers are available. For example,
"Deborah Barno, the supervisory trial attorney in the Detroit EEOC office, not[ed] that the jobless are seeking legal redress like never before. 'Our lobby is full every day, and mailed-in charges are increasing even more.'"
Detroit is now showing a 25% increase in the number of complaints pending compared to 2007.

State agencies provide evidence of surging claims as well:
"[T]he number of charges filed with the Tennessee Human Rights Commission has so overwhelmed the agency that it has publicly called for mediation to help reduce the backlog . . . . The Michigan Department of Civil Rights says age discrimination complaints have increased 77% during the past three years, from 703 in 2005 to 1,245 in 2008. And the Florida Commission on Human Relations reports that employment discrimination complaints in the last fiscal year were up 30% from the previous year."
Those are some pretty big numbers. I will note that the three states cited (Tennessee, Michigan, and Florida) all have seasonally adjusted unemployment rates above 10%.

The article concludes by comparing the surge in claims to a "gathering storm." The idea being that there is a lag, caused by the EEOC review process, between EEOC complaints and lawsuits. Based on this theory, employers should batten down the hatches.

Sunday, November 1, 2009

ADA Resulting in Fewer Jobs for Individuals with Disabilities?

As I explained in an earlier post (noting the link between Title IX and Women Coaches), I will be passing along the interesting employment law tidbits I encounter in Levitt and Dubner's SuperFreakonomics.

On page 139, inserted in a discussion of the law of unintended consequences:
"Consider the Americans with Disabilities Act (ADA), which was intended to safeguard disabled workers from discrimination. A noble intention, yes? Absolutely--but the data convincingly show that the net result was fewer jobs for Americans with disabilities. Why? After the ADA became law, employers were so worried they wouldn't be able to discipline or fire bad workers who had a disability that they avoided hiring such workers in the first place."
I wonder how they feel about the ADAAA?

The authors relied on a study by two MIT Economics professors finding that:
"Empirical results using the CPS suggest that the ADA had a negative effect on the employment of disabled men of all working ages and disabled women under age 40. The effects appear to be larger in medium size firms, possibly because small firms were exempt from the ADA. The effects are also larger in states where there have been more ADA-related discrimination charges. Estimates of effects on hiring and firing suggest the ADA reduced hiring of the disabled but did not affect separations."
The official "suggested citation" from SSRN:

Acemoglu, Daron and Angrist, Joshua D., Consequences of Employment Protection? The Case of the Americans with Disabilities Act (September 1998). Journal of Political Economy, Vol. 109, October 2001. Available at SSRN: If you know a counterargument or another empirical study please drop a comment.

More SuperFreakonomics notes coming soon!