Coming soon: George takes on the AFL-CIO website propaganda

This website, the AFL-CIO's "Eye on Corporate America," has lots of biased and misleading stuff I'd like to challenge and rebut. Can't do it all at once, but hope to make it a continuing series, first installment next week. Maybe it'll be George's "Eye on Big Labor."

Continued . . .

UFCW defeated in ill-timed California representation election

KTVU.com reports: "Famed Berkeley Bowl Votes Down Union."

"Workers at this city's much-loved Berkeley Bowl Marketplace on Thursday defeated a union organizing effort, voting 119-70 to remain a nonunion grocery store."

"The United Food and Commercial Workers Local 120, which was behind the campaign, said employees voted against unionization because of management threats."

"'The employer has so much power--over food, livelihood, rent,' union organizer Jeremy Plague said. 'It was the threats of layoffs, threats of strikes and everything else, and it really scared people.' "

No--management doesn't threaten strikes; only a union can call a strike. And the employees didn't have to look far to see what life is like on a UFCW picket line, given the current So. Cal. strike.

Continued . . .

Count your blessings as to economy

Yahoo! News (AP) reports: "French Unemployment Hits 3 1/2 Year High."

"The French unemployment rate edged up to 9.7 percent in September to a three-and-a-half-year high as the number of people without jobs recorded its sharpest monthly increase in seven years, increasing pressure on the country's fragile economic recovery."

Compared to that we're not doing that badly, nor are we doing badly compared to historical data for the US.

Beware, however, that the Wall Street Journal points out the unemployment rate may be stubborn for a while longer, as the current good economic news drives "discouraged workers" back into the work force, which may increase the denominator of this vital sign faster than increased employment increases the numerator.

Continued . . .

St. Louis grocery strike ends with significant company concessions

St. Louis Post Dispatch reports: "Grocery workers end walkout"

"Grocery workers off their jobs since Oct. 7 voted overwhelmingly today to accept a new contract and return to their jobs."

"Details of the contract had not been released before union members began gathering at the convention center at 7:30 a.m. But the Post-Dispatch learned that the proposal includes several improvements over the rejected contract. Among the provisions are:

An increased ratification bonus of 45 cents multiplied by the hours paid in the 52 weeks preceding the strike for all employes, including courtesy clerks.

A raise for courtesy clerks of 10 cents an hour in 2004, 2005 and 2006.

A raise for anyone paid at $9.00 an hour or above of 25 cents an hour in 2004, 2005, and 2006

Elimination of the $200-$400 deductible in medical benefits.

Restoration of lower caps on the cost of prescription drugs at $25 for a 30-day supply and $75 for a 90-day supply.

Other improvements also were included for current and retired employees."

That's more than a token from the companies IMHO.

I was somewhat surprised at the level of public support for the union here. Many acquaintances did not cross the picket line, which was completely unintimidating, so they were definitely acting out of sympathy. I think the companies hurt themselves by arrogantly insisting they were not going to change their proposal. (Ultimately this could have been unlawful -- though concessions are not required, the companies seemed on the verge of refusal to meet, as the union said they were willing to meet anytime, anywhere.) They have now hurt their credibility going forward by changing the proposal in so many ways.

I also think they were hiding the ball somewhat, because despite all their full-page ads and media appearances, I never once saw a statement comparing the healthcare costs the companies were passing on to employees with the additional amount the companies would be paying. This amount should legitimately have been viewed as equivalent to a wage increase, because it is a direct increase in cost of labor and a valuable benefit to employees. Had it been significant, it would have/should have been a huge part of the publicity campaign before and after the strike.

The union probably correctly saw this silence as an indication the initial offer was a net wage/benefit decrease, though certainly in this healthcare environment even a wage decrease could be a net wage/benefit package value increase -- if the company healthcare cost increased by more than the wage decrease.

It will be interesting to see if this outcome foreshadows what happens in the other UFCW grocery strikes. It certainly will raise union expectations, IMHO

Continued . . .

Good case on age discrimination defense using evidence of hiring of other older employees

Shannon P. Duffy writes in The Legal Intelligencer
"'Subsequent Good Act' by Employer Admissible
Company sued for age discrimination can show it hired older worker."

"In an age discrimination suit, the defendant company may present evidence that it hired another older worker more than a year after the plaintiff was fired because such evidence is relevant to the issue of the employer's alleged discriminatory intent, the 3rd U.S. Circuit Court of Appeals has ruled."

"In Ansell v. Green Acres Contracting Co., a unanimous three-judge panel found that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a "subsequent good act."

The article contains a good, fairly detailed summary of the arguments opposing admissibility of such evidence raised by the plaintiff -- and rejected by the court.

This case may not be groundbreaking, but it is nonetheless noteworthy for highlighting a potentially useful line of defense.

Rather than fighting attempts by a plaintiff to introduce evidence of terminations of other employees in a protected class, if an employer has good counter-evidence of favorable treatment, using such evidence in rebuttal may be quite potent.

Conceivably it would paint a very persuasive defense picture for a jury in an age case to be shown a parade of gray-haired employees testifying to how the people who allegedly committed age discrimination hired them, promoted them, gave them good evaluations and raises, etc.

Continued . . .

Chicago Teachers' Strike?

Findlaw (AP) reports: "Chicago Teachers' Union Approve Strike."

"Union delegates for Chicago's public school teachers approved a strike if negotiations fail, the first step toward a job action that could keep nearly 440,000 children out of class."

Main issues:

4 percent raises each year not enough for union. Teachers argue higher health insurance costs could consume those raises.

Proposal for longer school day in exchange for shorter year amounted to three extra work days without pay.

Soapbox: 4% a year sounds pretty darn good, and if on top of that the schoold district is picking up ANY additional health care costs (albeit passing some along), it's nothing to whine about. And all hours of work are not created either. We all already envy teachers those long summer breaks. I'd take more days off as part of such a lengthy continuous vacation in exchange for working more hours in a heartbeat.

Continued . . .

Good news on jobs, growth

CNN reports: "Weekly unemployment numbers fall"

386,000 people filed for benefits in the week ended Oct. 25, compared with a revised reading of 391,000 in the prior week.

Most economists consider new claims below 400,000 as a sign of recovery. This is the fourth consecutive week below that level.

Continued claims rose slightly to 3.56 million from a revised 3.50 million the prior week.

Four-week moving average of new claims fell to 388,750 from 393,500 the prior week.

Couple that with tremendous revised GDP growth for 3rd quarter, and the economy's looking up.

CNN also reports that "U.S. economic growth surged in the third quarter of 2003 to the fastest pace in nearly two decades."

Continued . . .

Groceries vs. UFCW strike updates

Three items today in this ongoing saga:

1) Locally, St. Louis UFCW reports tentative deal to end strike.

Details not released pending Friday AM union meeting and vote. Promised media blackout during negotiations apparently was leakproof. FMCS mediator will get credit if deal is approved.

My prediction: both sides will call it a win-win. Union will say it got more in wages, less in health premium sharing. Company will say it kept total package cost in line with original deal. The compromise will be hidden in benefit changes like copays for hospitalization that are hard for workers to quantify.

2) UFCW talks tough in Indy. Indianapolis Star reports: "Kroger, union return to table. "As grocery chain tries to make a deal with its employees, both sides make preparations for possible strike."

"As Kroger and the union that represents its Central Indiana meat cutters and clerks prepared to resume contract negotiations today, union leaders escalated their verbal threats and Kroger continued to hire temporary workers."

Does the following sound familiar?

"The union says the proposed contract limits health care benefits and wage increases for new hires and expands the time it takes to qualify for full pension benefits. Kroger says the proposed contract boosts both pay and pension contributions while providing its employees a package superior to those at nonunion grocery chains."

Now the following part is intriguing:

"Union members said Wednesday they plan a 'shock-and-awe' style walkout -- including possibly exposing 'what Kroger has done to some of its workers' -- if agreements on new contract proposals for the grocery chain's Central Indiana employees fail to materialize by early Sunday."

"About 4,000 members of Indianapolis-based United Food and Commercial Workers Local 700 will use 'traditional and nontraditional' methods to show their resolve to management and customers of 58 Kroger stores statewide, Local 700 organizing director Rian Wathen said."

"'We won't just be in front of grocery stores carrying picket signs,' Wathen said. 'We won't give away any specific plans. But our overall objective is to make customers understand that we don't want them to shop there until we all go back to work.'

"Although various descriptions have been attached to Local 700's strike plans -- 'shock-and-awe' coming from one strike captain -- 'calm' and 'resolve' are common words that link them all, Wathen said."

"Despite any publicity tactics the union may employ, the 'calm' part of its approach goes doubly for demeanor on its picket lines, where violence will not be tolerated."

"'There will be no obscenities, no destruction of property, no loudness, and respect will be shown for the surrounding neighborhood,' said strike captain Jerry Fishburn, a 22-year Kroger employee."

3) ABCNEWS.com reports: "Organized Labor Finances New Strike Fund"

"About 85,000 grocery workers nearing their third week off the job without paychecks are getting a financial boost from the AFL-CIO and its affiliated unions."

"Organized labor will announce a special emergency strike fund Thursday to help workers on picket lines in Southern California, Ohio, West Virginia, Kentucky and Missouri keep their homes and feed their families."

"The fund, called 'Hold the Line for America's Health Care,' will be used to aid workers facing emergency financial situations, such as evictions or defaulting on mortgages."

"'This is not a strike about Southern California it is a nationwide issue,' [UFCW spokesman Greg] Denier said. 'It is a fight about whether there will be health care benefits at work in the future. Every worker has an interest in the workers winning this strike.'"

"AFL-CIO officials said the labor movement views the strike as a line in the sand for American workers, and will devote tens of millions of dollars to the effort for as long as it takes."

That may not be enough. A lot is at stake for a lot of wealthy big companies who have tremendous assets and are also fed up with rising health costs. They could outlast the unions. Expect continued tough negotiatons and strikes involving healthcare benefits over the next year.

Continued . . .

Black conservative judges unfairly maligned

Workplace Fairness (an extensive site with a good blog, but clear pro-employee bias) has this: "Yet Another Out-of-Step Judicial Nominee: Oppose Janice Rogers Brown's Nomination to the DC Circuit."

"[O]ne of the latest (but unlikely to be the last) way-out-of-the-mainstream judicial nominees to come before the Senate Judiciary Committee is Janice Rogers Brown, who has been nominated to the D.C. Circuit Court of Appeals."

"Brown currently serves as a justice on the California Supreme Court, a position she has held since 1996. Born in 1949, Justice Brown grew up in the Deep South as the daughter of Alabama sharecroppers, and one might think that she would thus be compassionate towards employees who experience workplace discrimination and harassment. But nothing could be further from the truth."

"Instead, Justice Brown's record shows a consistent opposition to efforts to remedy workplace injustice, with often outright hostility toward those seeking to remedy perceived injustice, including workplace discrimination claims. Her civil rights opinions have been characterized as 'perhaps the most troubling area of a very troubling body of work,' as she has consistently taken positions hostile to discrimination claims based on race, age, gender, and disability, as well as affirmative action, and workplace privacy."

Yes, to their credit, they give specific examples, with links. I speed-read a few, and must say I disagree with the assertion that they reflect bad judging. To the contrary, I like what I see. She is criticized for well-reasoned opinions in tough cases that resulted in as many different opinions as the typical 5-4 US Supreme Court case.

Worklace Fairness says:

"Justice Brown believes free speech is more important than preventing workplace harassment. In a case involving a group of Latino employees who were subjected to a constant barrage of demeaning racial comments and other discriminatory conduct by their supervisor, Justice Brown stated in a dissenting opinion that racially discriminatory speech in the workplace is 'free speech' protected by the First Amendment and can never be limited by an injunction, after the lower court had issued an injunction prohibiting the supervisor from uttering racial slurs. (Aguilar v. Avis Rent A Car Systems, Inc)

Actually, the harassment law/free speech issue is a serious First Amendment issue, albeit one cavalierly disregarded by most courts. When words alone are the basis for a harassment claim, while there is probably a way to constitutionally justify liability, constitutionality is certainly an issue to be dealt with seriously when raised. Sometimes the words are not racial epithets, but expressions of what could be viewed as (politically incorrect) sociopolitical opinion (e.g., "women with children should stay home with their kids, not work"). Judge Brown correctly cites US Supreme Court precedent allowing all sorts of expression of racism outside the workplace and the law of prior restraint. I'm no 1st Amendment expert, but I don't think she's totally off the wall.

Worklace Fairness says:

"Justice Brown lacks compassion for employees seeking to preserve their workplace rights. In a case involving workplace drug testing, Justice Brown rejected the 30-year old balancing test used by California courts in all privacy cases, reasoning that employees wanting to preserve their privacy rights could avoid a drug test altogether by not applying for a job or promotion. While purportedly acknowledging the difficult choice between taking a drug test and getting a promotion, Justice Brown stated: 'Such choices are neither easy nor comfortable. But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.' (Loder v. City of Glendale )."

Check this case out. She reasonably argues, among other things, that the constitutional 4th Amendment rights of employees may be waived, and consent freely given to a drug test, even if the alternative is to sacrifice a promotional opportunity, analogizing to waiver of such rights in consenting to a search as a condition of boarding an airplane, something we all do these days. Again, I'm no expert on the law of search and seizure, but she seems to have a point. She also thinks the government qua employer should be subject to the same restrictions as private employers, who can (generally) freely drug test, and with whom the government competes for employees. That's a bit farther out there, but its not her primary rationale.

And finally, Worklace Fairness says:

"She demonstrated a similar lack of compassion for age discrimination victims in a dissent where she wrote that '[d]iscrimination based on age is not, however, like race and sex discrimination. It does not mark its victims with a ‘stigma of inferiority and second class citizenship’; it is the unavoidable consequence of that universal leveler: time,' and argued that in a society in which the number of jobs are finite, it makes sense in many cases to replace older workers with younger ones, so that policies against such replacement are not necessarily in the public’s interest. (Stevenson v. Superior Court)"

Wow. Sounds really off the wall. But read the case. She's siding with the vast majority of states in refusing to interpret a state fair employment law to support a common-law "public policy" wrongful termination tort action--a wholly duplicative remedy not contemplated by the statutory scheme. The referenced comments in context are not in support of the position that age discrimination should be lawful, but that the legislative remedies, which include mediation and conciliation, are adequate, and tort remedies could unnecessarily deter employers from firing unworthy older employees.

Democrats and liberals are especially aggravated that black or hispanic Americans who study law would choose anything but judicial activism and sympathy for the downtrodden as their guiding light (as opposed to values like respect for precedent, intellectual honesty, consistency, and fairness). Why shouldn't they be allowed the same "diversity" of approaches to judging as anyone else? Which brings me to the much-maligned Justice Thomas's recent visit to St. Louis, reported in today's St. Louis Post-Dispatch

He told a group of schoolkids that "The most challenging part of serving on the country's highest court is when there is no legal authority to help someone. . . .'The hard part is when your heart wants you to do something ... and you can't help them,' Thomas said."

Soapbox: Those who oppose judges like Thomas and Brown want judges to twist and stretch and even disregard the law when their heart calls out. What we need is judges of all colors who are dedicated to the rule of law and to applying solid legal analysis to the cases before them, even if at times the result makes them appear unsympathetic to the plight of "their own people."

Continued . . .

Philadelphia mayor's heavy-handed attack on Wal-Mart

Philadelphia Daily News reports; "Street, Union Find Solidarity"

"Mayor Street wants as many union endorsements as he can get and as many Election Day foot soldiers as possible."

"The United Food and Commercial Workers Union Local 1776 wants to stop the giant, non-union retailers who are eyeing megastores for Philadelphia from selling groceries."

"So when City Council's rules committee convenes today, it will consider a bill sponsored by Rick Mariano to severly limit the opportunity for the Wal-Marts, Targets and the like to build megastores that cater to customers' every need - from food to clothing and everything in between. . .. The bill would ban outright stores 'anticipated or projected to exceed 180,000 square feet' if they sell nontaxable food items. For stores of 90,000 square feet up to 180,000 square feet, only 10 percent of the floor space and gross sales could be food items, a percentage far below typical in the industry.. . . 'Bigger isn't always better,' said Mariano, who got the idea for the bill from the Food Workers union."

"Meanwhile, Local 1776 is endorsing Street for re-election and will put hundreds of its union members on the street on Election Day, according to Wendell Young IV, Local 1776 business agent."

"And what is [Mayor] Street's position on this bill . . .? If you guessed that he'll back the union-supported bill, you get a gold star."

Wow! That's about as subtle and economically wrongheaded as rent control!

Continued . . .

New Blawg feature

I've added a feature I hope makes this Blawg more useful and interesting. Now you can view archive pages by category, so you can focus on particular areas of interest. See links to right. Each category shows linked headlines only.

Presently, I have manually archived August and September only. Hopefully, soon I will be working forward through October and backward to May, when I started this project.

Continued . . .

A slew of pro-employee legislative developments in Illinois

This is based on the article "New Illinois Laws Add To Employer Obligations And Liability," linked below under Labor & Employment Articles from Mondaq.com

The Illinois legislature and governor have been busy making their great state even less hospitable to business. Good news for those trying to attract business across the river in Missouri.

Here's what they've done:

1) Victims’ Economic Safety and Security Act effective August 25, 2003, applicable to private-sector employers with 50 or more employees, as well as all public-sector employers. Similar to FMLA, but provides employees who are victims of domestic or sexual abuse, and those with family members who are such victims, with up to 12 weeks of unpaid leave within a 12- month period. The law also requires employers to reasonably accommodate the "known limitations" of a victim of domestic or sexual abuse or of a family or household member of a victim.

2) An amendment to the Illinois Criminal Identification Act, effective January 1, 2004, requires that employers who inquire into an applicant’s criminal history add to their applications specific language which affirmatively states that the applicant is not obligated to disclose sealed or expunged records of convictions or arrests. Nor may employers ask if an applicant has had records expunged or pardoned.
Whistleblower Protection for Private Sector Employees

3) "Effective January 1, 2004, Illinois private employers of every size will be prohibited from enforcing any rule or policy that prevents an employee from disclosing information in good faith about a violation of a federal, state or local law to a governmental or law enforcement agency. It also prohibits an employer from retaliating against an employee for "whistleblowing" to a government agency. Further, employers cannot retaliate against an employee who refuses to participate in an activity that would result in a violation of state or federal law."

"The new state law codifies what already is known and prohibited as "retaliatory discharge" under the common law of Illinois and many other states. However, it goes further by not limiting its protections to discharge."

4) New Illinois Equal Pay Act broader than Federal counterpart, effective January 1, 2004, "prohibits employers with four or more employees from paying unequal wages to men and women for doing the same or substantially similar work, requiring equal skill, effort and responsibility, under similar working conditions for the same employer in the same county. Discrepancies in wages in these situations are allowed where the wage difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or a factor other than gender."

"The new Illinois law looks to county-wide comparables, rather than facility-based comparables used under federal law. That is to say, employees within the same county performing substantially similar work—let alone the same physical place of business—will have to be paid equally absent gender-neutral distinctions."

"Further, in contrast to existing law, the new Act increases the time period for employer liability. The old Illinois Equal Wage Act required employees to bring an action within six months after the alleged violation. The new Illinois law allows actions to be brought up to three years after the employee learns of the underpayment."

"Under the new Act, employees cannot be penalized for discussing or comparing their wages or the wages of other employees 'with each other" or "among themselves.' "

5) "On January 1, 2004, the state minimum wage will increase from $5.15 to $5.50 per hour. The wage will be raised again on January 1, 2005 to $6.50 per hour. To put this into perspective, this increase is greater, on average, than 75 percent of other state increases across the country for the same time frame."

6) "Effective January 1, 2004, state workers will be covered by the federal ADEA, Title VII, ADA, FMLA and FLSA."

7) "Effective January 1, 2004, amendments to the Employment of Strikebreakers Act and the Day and Temporary Services Act will prevent employers from contracting with day and temporary labor service firms in an effort to replace workers during a lockout or strike."

8) "Effective immediately, . . . public employees are now allowed to form unions based on card-check recognition. . . . Noteworthy to public employers will be the lack of time they have to mount any type of campaign against certification."

Wow, they sure were busy helping employees and unions. What have they done to help employers, such as dealing with the litigation cesspool in Madison and St. Clair counties, and the rampant forum shopping to get cases heard there, which has gained national noteriety? Nothing I'm aware of.

Continued . . .

Chrysler/UAW pact adresses absenteeism, while CCH survey reports record low absenteeism

This from Workforce Management:

"A proposed labor agreement between Chrysler and the UAW levies stricter penalties on employees who are excessively absent, according to Automotive News. Both the unions and Chrysler seem happy about the provisions, which are aimed at getting absenteeism closer to Japan’s 2 to 4 percent rate of sudden no-shows.

"The rate of unscheduled absenteeism fell to an all-time low of 1.9 percent last year, according to CCH. Absenteeism costs employers about $645 per employee annually."

Here's the CCH report: "Unscheduled Employee Absenteeism Hits Lowest Point in CCH Survey History."

Highlights from it:

"Most employees taking unscheduled time continue to do so for reasons other than actual illness. The CCH survey found that while Personal Illness is still the single most common reason for last-minute no-shows (36 percent), nearly two-thirds (64 percent) of unscheduled absences are due to Family Issues (22 percent), Personal Needs (18 percent), Entitlement Mentality (13 percent) and Stress (11 percent)."
"The current economy may be among the factors in the overall reduced rate and cost of absenteeism."

"Even though fewer workers are calling in sick overall, those organizations reporting low employee morale struggle with higher unscheduled absenteeism rates and costs. The rate of unscheduled absenteeism is 17 percent higher among companies with Poor/Fair morale compared to those with Good/Very Good morale."

"Morale also influences the reasons people call in sick at the last minute. Organizations reporting Poor/Fair morale were more likely to experience unscheduled absenteeism due to Stress (14 percent) and Entitlement Mentality (16 percent) than organizations reporting morale as Good/Very Good (9 and 11 percent, respectively)."

There is much more in this CCH piece, including what programs work best in reducing and controlling absenteeism, and "presenteeism" --

"a new term used by human resource professionals to describe circumstances in which employees come to work even though they are ill, posing potential problems of contagion and lower productivity. This year, for the first time, respondents to the CCH survey were asked whether presenteeism is a problem in their organizations and nearly half (44 percent) said yes."

Continued . . .

HR role in excesses of executive compensation discussed in depth

Workforce Management staff writer Douglas P. Shuit writes in:"Pay Unchecked" that "[h]uman resources executives should show some backbone, and just say no to overblown CEO compensation packages."

He discusses a bankruptcy report filed in federal court by court-appointed corporate monitor Richard C. Breeden in the Worldcom case.

"Breeden makes 79 recommendations in his 156-page report, and says that full implementation will make MCI a model for corporate governance. Among his proposals is a yearly limit of $15 million on CEO compensation. Under the old rules, [Worldcom CEO] Ebbers received $408 million in loans from the company during one 18-month period, and passed out $238 million to senior officers in 2002."

"Critics say that lavish compensation programs, because they often are tied to loose control by corporate boards, can be a tip-off to much bigger problems, as was the case with WorldCom, Tyco and Enron. 'Compensation tends to be a fairly useful window that gives you a lot of clues about how boards are operating and aligning their interests,' says Ted White, director of the corporate-governance program at CalPERS, a public-employee pension system with assets of $149 billion. Companies that experience the largest layoffs, report the most underfunded pension funds and receive the biggest tax breaks also are among those paying the highest rates of executive compensation, according to a study published in August by the Institute for Policy Studies. The study also notes that the disparity between pay at the top and earnings of production workers remained well above historic levels. In 1982, the CEO pay gap was 42 to 1, whereas in 2002 it stood at 282 to 1. If the average annual pay of production workers had risen at the same rate since 1990 as it has for CEOs, their 2002 annual earnings would have been $68,057 instead of $26,267, the study says."

"Bruce Ellig, retired corporate vice president of employee resources at Pfizer, Inc., and long active in the Society for Human Resource Management, says that human resources managers 'could make a very big contribution' in all this. But he adds that many human resources managers are way behind, and must become broadly knowledgeable in accounting and finance, Securities and Exchange Commission requirements and tax laws before they can bust into the top corporate tier where CEO compensation issues are decided. 'If they had HR people who were smart enough and good enough to handle touchy issues, I don’t think a lot of this would have happened,' says Ellig, author of The Complete Guide to Executive Compensation."

There's much more in this article, well worth reading and pondering.

Continued . . .

Jobless recovery victims adapt and survive

USATODAY.com reports: "Laid-off take survival jobs to pay the bills."

"More workers who find themselves unemployed are turning to survival jobs, taking hourly or part-time work to make ends meet as the economic rebound drags on."

"Nearly 5 million people who want full-time jobs have settled for part-time work because of economic conditions, up roughly 30% from 3 million in July 2000, according to September unemployment data from the Department of Labor."

"Of job seekers ages 25 to 40 who are considering an hourly job as a temporary replacement for a career job, nearly one in three — 27% — investigate hourly work less than one month after their career jobs end, according to a poll by online employment site SnagAJob."

"With the unemployment rate at 6.1% in September, managers and professionals with college degrees are competing with high school students for entry-level jobs."

"The former executives are wiping down tables, selling candles at tourist shops, walking dogs — whatever it takes to help pay bills until employers start hiring again. "

"The risk, says Robin Ryan, a Seattle career counselor and author of 60 Seconds & You're Hired!, is that workers who take survival jobs will get depressed about their plight, which can immobilize the job search."

"'Where is your time to network, to work on your résumé?' Ryan says. 'You can get in a rut, get depressed. They almost get a low-grade depression. The days blend together, they do their part-time thing, and they meander through life with no hope they're getting a new one.' "

"For many, it's a harsh waiting game. While talk of an economic turnaround has some underemployed workers hopeful that jobs will return, few say they're convinced they'll see the same incomes they earned a few years ago."

Some people may in fact have been way overpaid during the internet boom. Others will find their way back as things pick up again. If I were hiring, I'd look favorably on someone who did something--anything--to keep busy and earn money after being laid off versus somebody who was "full-time" looking for a job for months and months and months.

Continued . . .

Interesting whistleblower/1st amendment allegations

Findlaw (AP) reports: "Colo. Worker Fired After Outed As Source."

"A planner for a ski resort was fired after she was identified as an anonymous source who criticized Aspen for its development of a housing and retail development."

Her comments included an allegation that "back-room" negotiations were being employed by the developers and the town. She modified that statement the following day, saying, "I never meant to imply that there was anything illegal going on. It's just the community is not being listened to. Anybody has the right to say that."

The Town Manager said she was fired because of the comment in the newspaper.

She said "It's like [the Town Manager] stuck out his tongue and said, 'So sue us.'"

So will Colo. law protect her as a whistleblower, though she alleged no illegality? Haven't researched it, but I'm doubtful. As an employee of a subdivision of a state, does she have a valid First Amendment retaliation claim? Closer call, I think, depending on extent to which this was a matter of public interest. Seems like the Town's already admitted causation.

Continued . . .

Update on Wal-Mart immigration raids

Findlaw (AP) reports: "Sources: Wal-Mart Knew of Illegal Workers."

"Wal-Mart had direct knowledge of immigration violations involving its cleaning contractors at stores across the country, federal law enforcement sources said."

"Federal agents raided Wal Mart's headquarters and 60 of its stores across the nation Thursday, arresting more than 300 illegal workers. . .."

"The arrests were made at stores in Alabama, Arkansas, Arizona, Connecticut, Delaware, Kentucky, Massachusetts, Maryland, Michigan, North Carolina, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and West Virginia."

"The workers were members of cleaning crews hired by outside contractors, but federal law enforcement officials . . . said Wal-Mart knew of the violations. They cited recordings of meetings and conversations among Wal-Mart executives, managers and contractors."

Oops! When you're so intent on rolling back prices (and wages and benefits), there can be an irresistable temptation to use illegals. No excuses. if we're to ever get a handle on the illegal immigration problem, Wal-Mart and other large corps will have to become poster boys. Lets see some massive fines.

And all you good employers, make no assumptions one way or the other about foreigners. Use that I-9 form to cya, and go ahead and hire if papers appear in order.

Continued . . .

McDonald's settles obesity employment case

CNN (Reuters reports: "McDonald's settles suit with overweight man"

No, it's not about blaming the company for his obesity.

"McDonald's Corp. said Thursday it settled a[n ADA] lawsuit alleging it had discriminated against a 420-pound man who said he was denied a job in one of its restaurants due to his weight."

Obesity as a disability is a tough way to go under the ADA, but not impossible. Perceived disability is a real possibility, as employers may believe grossly obese persons cannot perform many jobs, not just the job at issue.

But with McDonald's, I'd have to say there could be real issues as to such a large person's ability to perform the essential functions. I worked there 25+ years ago (for $1.60 an hour, no benefits), and have never since worked so hard in terms of long hours on my feet without pause ("if you got time to lean you got time to clean"). We really hustled our buns behind the counter too, as "mystery shoppers" from the company were known to come in and time the service to the second. Judging from my more recent (infrequent) visits to McDonald's, fast-food isn't so fast anymore and the hustle may no longer be an essential function.

Of course, it's probably discriminatory stereotying to assume merely because a man weighs 420, he can't work long hours on his feet and hustle his (big) buns.

Continued . . .

360-degree performance reviews

Christian Science Monitor has another excellent workplace trend piece:"To put best foot forward, look around."

"Started three decades ago, 360-degree reviews reached fad stage by the early 1990s. The low quality of some of the surveys and consulting left a number of companies disillusioned, but 360s have since emerged as a mainstream employee-development tool."

"'Any kind of development, as a leader or as an individual, has to have a starting point - an open and honest look at your own strengths and weaknesses,' says Craig Chappelow, a senior manager at the Center for Creative Leadership in Greensboro, N.C, a nonprofit group that develops 360-degree feedback surveys and helps people interpret the results."

"Most Fortune 500 companies use 360s, but the quality of the surveys available varies widely, says Frank Shipper, a management professor at Salisbury University in Salisbury, Md." Here's his homepage with more stuff on this topic, apparently his specialty.

"To do a 360 well, he and other experts say, the consultants and the companies hiring them should build in follow-up support. The person receiving feedback should be able to focus on one or two key changes to make."

This type of evaluation of supervisors and management is also an excellent tool for harassment and discrimination prevention and defense. Employees given opportunity to give general feedback about bosses who fail to raise harassment issues at this time can be impeached with this failure if they later claim harassment occurred prior to feedback. It can also be used towards the Faragher affirmative defense, both as to the employer's efforts to prevent and correct harassment (by eliciting feedback on supervisors) and the employee's failure to complain.

Continued . . .

Eighth Circuit indicates its application of Desert Palace v. Costa; says 2 months too long for inference of retaliation

In Trammel v. Simmons Bank (9/23/03), an age discrimination case, the Eighth Circuit, faced with no "direct evidence," applied the familiar McDonnell-Douglas burden shifting approach. Assuming the plaintiff had presented a prima facie case, it conluded the employer had presented a legitimate, nondiscriminatory reason that the plaintiff failed to prove pretextual. It then said:

"We note that the Supreme Court recently held that under the current language of Title VII . . . a plaintiff may be entitled to a mixed motive jury instruction without presenting direct evidence of discrimination if he or she shows that discrimination was a 'motivating factor' in the adverse employment decision. See DesertPa!ace, Inc. v. Costa, 123 S. Ct. 2148, 2155 (2003). In the past we have required direct evidence, which is not present here, to support a mixed motive claim. . . . But even if we assume, without deciding, that the holding in Costa applies to ADEA claims, we do not believe that this helps [the plaintiff] because he has presented insufficient evidence to support a finding that his age was a "motivating factor" in the decision to discharge him."

It's far from clear that Costa applies to ADEA claims, as it relied exclusively on the language of the Civil Rights Act of 1991, which is not expressly applicable to such claims. But the court suggests that in applying Costa, it will continue to follow McDonnell-Douglas. So a plaintiff can't get a mixed motive instruction until he/she either proves discrimination by direct evidence or under McDonnell-Douglas. So what does Costa change?

The court also dealt with a retaliation claim, citing several cases to support its conclusion that a time interval of more tham two months between protected conduct and adverse action is "too long to support an inference of discrimination."

Continued . . .

Wal-Mart immigration headache

FindLaw Reuters reports: "Feds Arrests 300 Wal-Mart Workers."

"Authorities arrested about 300 workers at 60 Wal-Mart Stores Inc. locations across the country on immigration charges in an investigation into contractor cleaning crews, and some company executives knew about the scheme, U.S. officials said on Thursday."

Continued . . .

Good employment stats again

CNN reports: "Jobless claims fall to 386,000 in latest week"

US jobless claims fell, "remaining below the key 400,000 level that many economists believe is a benchmark for labor-market weakness."

"386,000 people filed for benefits in the week ended Oct. 18, compared with a revised reading of 390,000 in the prior week."

"The four-week moving average of new claims, which irons out the volatility of the weekly data, was unchanged at 392,250 in the week ended Oct. 18 from the prior week."

"Continued claims, the number of people out of work for a week or more, fell to 3.5 million for the week ended Oct. 11, the latest data available, from a revised 3.6 million the prior week."

Continued . . .

Cool Bureau of Labor Statistics tools

Click here to view unemployment trends by state on a US map.

Click here for the "economy at a glance."

And, my favorite, click here for the handy-dandy inflation calculator (how much would that '66 VW Beetle that I bought in '77 for $600 cost in today's dollars? $1833.66)

Continued . . .

Suggestion on avoiding high-tech snooping

ZDNet UK (CNETAsia) has this: "Workplaces 'should ban camera phones"

"All companies, not just those handling highly sensitive materials, should ban employees and visitors bringing camera-enabled phones into the premises, according to an analyst."

"'A clear policy of no camera-enabled phones -- just as there is a clear policy in most companies that no cameras are allowed on the premises -- is required and desirable,' said Jack Gold, an analyst with IT research firm Meta Group."

"While the image quality of cameras in most phones is poor, they are a channel for leaks of sensitive data or other images that can produce 'unintended consequences,' said Gold."

"Besides corporate espionage, the growing popularity of camera phones has also sparked concerns over individual privacy. In some countries, the uses of these gadgets are already prohibited in public areas such as swimming pools and changing rooms to protect consumers against the wandering lenses of voyeurs."

"Korean authorities are reportedly mulling a law which makes it mandatory for phone makers to install a 'noise emitter' in their camera-equipped handsets." Under the proposed bill . . . , manufacturers will have to design their camera phones to emit a loud noise when pictures are taken. This will alert the public when their pictures are snapped to prevent human rights infringements and industrial espionage."

"Electronics firm Iceberg Systems is beta-testing Safe Haven, which combines hardware transmitters with a small piece of control software loaded into a camera phone handset. When the handset is taken into a room or building containing the Safe Haven hardware, the phone is instructed to deactivate the imaging systems. The systems are reactivated when the handset is out of range."

Everyone with a cell phone can now be "Big Brother," a spy, a detective, and a voyeur. Now that's progress!

Check here for more alarming reporting on the possibilities this technology presents for abuse, and the Safe Haven solution.

Continued . . .

Tips on promotion decisions

Microsoft bCentral has this practical column:"Promoting employees: how to get it right," by Jeff Wuorio.

Seven guidelines for promoting an employee:

1. Get to know all the wrong reasons for doing it.

2. Recognize that competence doesn't necessarily mean a promotion.

3. Spell out why you'd promote an employee.

4. Let your people know what you're looking for.

5. Look at weaknesses as well as strengths.

6. Know the importance of detachment. You've seen it in dozens of movies — a guy from the loading dock moves up to a supervisor's job, only he can't stop acting as though he's still one of the boys.

7. Take a lesson if someone says "no thanks."

To which I'd add, from a defensive employment lawyer perspective:

8. Have set procedures for posting and filling vacancies internally vs. advertising and hiring from outside.

9. Avoid croneyism and nepotism -- make decisionmakers justify decisions to others who are more objective.

10. Document reasons for promotion decisions -- positives of employee promoted and negatives of those considered but not promoted.

Continued . . .

Case emphasizes discrimination charge relationship to lawsuit allegations; also key points for retaliation cases

Sitar v. Indiana Dept. of Transp. (7th Cir. 9/29/03)

In this sex discrimination, sexual harassment, and retaliation case, the Seventh Circuit affirmed summary judgment for the employer on the discrimination and harassment claims, but reversed on the retaliation claims.

Problems with the charge

The problem for the plaintiff on the discrimination and harassment claims was the failure to include them in the EEOC charge, which mentioned only retaliation. The court applied following principles:

“Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. . . . The only qualification to this principle applies to claims that are ‘like or reasonably related’ to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation.”

Here the plaintiff checked only the retaliation box on the charge form, alleging that her termination was in retaliation for an earlier complaint about sex discrimination. The court said:

“Normally, retaliation, sex discrimination, and sexual harassment charges are not ‘like or reasonably related’ to one another to permit an EEOC charge of one type of wrong to support a subsequent civil suit for another. . . . Those different claims may be so linked, however, where they are ‘so related and intertwined in time, people, and substance that to ignore that relationship for a strict and technical application of the rule would subvert the liberal remedial purposes of the Act."

Here, there was no such linkage because the "sex discrimination and sexual harassment claims involve a separate set of incidents, conduct, and people, spanning over a period of time prior to the filing of her complaint and more than three months prior to her termination."

The ability to prevail on this rather technical defense of failure to properly exhaust EEOC procedures highlights the importance of examining the charge in every employment discrimination lawsuit to determine whether such a defense is available. If it is, it’s great summary judgment material. If it's even arguable, it lowers the value of the case for settlement.

Retaliation standards

The Seventh Circuit's discussion of the retaliation claims also illustrates several important points.

First, the claim that the plaintiff's transfer was retaliatory was rejected because prior to the transfer she had complained only that she felt picked on, not that she was discriminated against because of sex or gender. The court said:

"Although an employee need not use the magic words 'sex' or 'gender discrimination' to bring her speech within Title VII's retaliation protections, 'she has to at least say something to indicate her [gender] is an issue. An employee can honestly believe she is the object of discrimination. but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints."

The court also said, however, that job transfers like the one involved “that lead to significantly diminished responsibilities and substantially changed working conditions can be retaliatory actions" upon proper proof of retaliatory motivation.

Finally, the court's discussion of its finding that the plaintiff had established a prima facie case of retaliatory termination indicates the standards for the direct and indirect methods of growth it applies to retaliation cases:

“Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two."

"Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer's legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity."

Here, close timing sufficiently established causation for the direct method even though several months passed between the plaintiff's complaint and her termination. The evidence showed that there was close timing (same day) between the termination and when the individual who terminated her learned he was being disciplined for his role in the conduct she complained about.

Timing is the plaintiff's best friend in retaliation cases. Employers should be extremely cautious about terminating employees who have complained about discrimination at or near the time the complaint occurs (or, as in this case, has significant negative consequences).

Continued . . .

Fellow Blogger adds thoughtful and personal voice to my commentary on health insurance issues

See this post ("passionate concern about health care coverage (personal reflection)") and this one ("California strikers and the cost of their health insurance") from sonria.org, which cites back to this blawg.

Bloggers and readers: let's all do our part to keep this issue rolling towards solutions!

Continued . . .

New York Times on health care crisis

New York Times reports: "Workers Feel Pinch of Rising Health Costs"

Good story, worth reading in full. Most interesting point for me:

A few large employers are offering "a new type of health plan, sometimes called consumer directed, that gives workers an unfiltered view of health bills — and often increases their costs. Employees get an allowance to spend on medical expenses. If they exhaust it, they use their own money until they reach a limit, typically $3,000 to $5,000, when the plan starts paying."

Continued . . .

AFL-CIO position on Wal-Mart's health insurance -- blame the employer, not the system

AFL-CIO's website has this: "Is Wal-Mart Setting the (Low) Standard for Employer Health Coverage?"

Guess the answer? Of course they are. But why? Because they can get the labor they need cheaply enough without offering expensive health plans.

AFL-CIO observes:

"Wal-Mart’s bottom-of-the-barrel wages averaging $7.50 to $8.50 an hour leave workers well below the federal poverty line for three- or four-person families. . ..These low wages, combined with high health insurance payments, make health coverage unaffordable for 46 percent of Wal-Mart workers. In 2001, Wal-Mart workers paid between 41 percent and 47 percent of the total cost of the company health plan, while similar employees at large companies pay 16 percent of the total premium for single coverage and 25 percent for family coverage."

So it's the employer's fault that it won't pay an extra $3-$4 per hour per employee for full family coverage, increasing the effective wage by 50%? No, it's the fault of the system that won't provide reasonable options for coverage to the working poor (and many others, including myself)

Continued . . .

Unanswered questions of sexual harassment law

This entry in Michael Fox's Jottings By An Employer's Lawyer, discussing the recent case of Walton v. Johnson & Johnson, (11th Cir. 10/20/03) raises some interesting unanswered questions regarding sexual harassment law.

For my answers, click his "comments" link (I ran on past the character limit, so it's actually two comments).

Continued . . .

Interesting--transcript of sniper trial self-representation motion discussion

CNN.com reports: "Judge tried to persuade Muhammad out of self-representation."

This is the transcript of the bench conference considering the sniper suspect's self-representation motion.

As I expected from my experiences with cases involving pro se individuals, the judge made a pretty good, repetitious record of the waiver of the right to representation.

Continued . . .

Critique of 401(k) plans

Business Week Online has this very interesting story by William Wolman: "The Great 401(k) Hoax, Continued."

Some highlights (worth reading the whole piece):

"The dirty little secret of the 401(k) industry is that workers don't gain as much as you might think when the market does well. Mounting evidence shows that 401(k)s provided paltry returns during the great stock market boom of the 1980s and 1990s, when the benchmark Standard & Poor's 500-stock index quintupled in value. The data that show this best have been compiled by New York University professor Edward N. Wolff. His numbers show that, adjusted for inflation, the total pool of money set aside for retirement didn't increase in the 15 years from 1983 to 1998. Over that period, 65% of American households headed by a person from 47 to 64 years old had either the same or less pension wealth in 1998 than they had 15 years earlier."

"The main flaw in almost all companies . . . is a failure to encourage a workplace dynamic in which the worker will pay more attention to his 401(k). . . . Systems in which employees are passive recipients of investment advice from a group of underperforming professionals are bound to fail."

"In an ideal 401(k) world, conversation among employees about retirement programs should be almost as common as talk about the movies or where to have lunch." Yeah, right!

"Professor Esther Duflo of Massachusetts Institute of Technology and then-Harvard Professor Immanuel Saez (now at the University of California at Berkeley) analyzed plan participation data and found strong statistical evidence that decisions about retirement plans are heavily influenced by fellow workers in the same department."

"The study focused on the role that information and social interaction play in decisions, and it outlined practical steps that plan sponsors can take. These steps center on organizing meetings around natural peer groups within the workplace. The researchers also found that Internet sites highlighting real-life examples of how co-workers have found ways to improve the performance of their 401(k)s and to increase savings prove to be a great help."

"[W]hat's needed is an environment in which employees themselves are the source of the education effort. . . . The major problem is that an employee-organized 401(k) group, like any other employee organization that goes much beyond getting together for jogging at lunchtime, tends to be viewed with suspicion and met with resistance by employers. The reason: the U.S. management tradition that considers worker-sponsored initiatives to be a threat to managerial prerogatives and an invitation to union activism."

The bigger problem is it's just like health care: once employees realize there's a problem, they'll blame employers for not contributing enough, rather than themselves for being poor savers and investment decisionmakers (or in the case of healthcare, fat couch potatoes who smoke and drink too much and poorly utilize healthcare).

"It's past time for management to realize that employees can't afford to be passive about an issue that has the power to determine whether they'll have a decent standard of living in the last 30 years of their lives. After all, the economy's health will be dramatically affected by how well retirees are able to live. Corporate America has a huge stake in this outcome. If the aging baby boomer demographic is so strapped financially that its spending on goods and services is limited to necessities, businesses will bear the brunt."

Plus we Boomers will be really bummed out and whiney because we're soo. . . spoiled. I want my non-necessities!

Continued . . .

Great analysis of health care--the big picture

Business Week Online has this story by Howard Gleckman: "Why Health-Care Costs Keep Soaring.

A few highlights (it's worth reading the whole thing):

"Are health-care expenses really up that much? Did the Cubs choke in the playoffs? As a society, total health-care spending is rising at about 7.3% a year. Overall, Americans will spend nearly $1.5 trillion on medical care this year -- that's almost 14% of total gross domestic product. As a share of the economy, the U.S. spends more than any other country in the world."

"Ten years ago, few people ever heard of acid-reflux disease, and little could be done to treat it. Now, Americans spend more than $8 billion annually on drugs such as Prilosec for heartburn. And when insurance pays, Americans want it all."

"Insurance pays roughly three-quarters of all health-care costs in the U.S.. And unlike auto or homeowners' insurance, much of it is up-front, first-dollar coverage. That insulates consumers from the real cost of care and breaks the normal link between between price and demand. You're a lot more likely to think twice about visiting a doctor if you're going to pay $85 than $10."

"A new study by the Kaiser Family Foundation and the Health Research & Educational Trust reports that last year claims expenses were up about 12.4%, but premiums rose 15.6%. That's a sweet little underwriting profit for the insurers."

"Bottom line, is all this spending making Americans healthier? That's the $1.5 trillion question. Though the U.S. spends far more per person on health care than any other country, life expectancy here is actually a bit below the average for major industrialized nations. The real question is not how much is spent on medical care but whether those dollars are spent as wisely as they should be."

Continued . . .

Unions litigate OSHA issue

Reuters reports: "Unions Sue Labor Dept. for Clean Air Regs."

UAW and Steelworkers unions "filed a lawsuit against the Labor Department on Tuesday, seeking to force it to set clean air standards for factories."

The suit seeks a court order requiring OSHA to issue new standards reducing exposure to toxic metalworking fluids, widely used in the manufacture of automobiles, farm equipment, aircraft and other products.

"In 1998, [NIOSH] recommended a standard for factory workers' exposure to oil-based metalworking fluids 10 times more rigid than the current government standard, set in 1971."

"But the unions, which first petitioned regulatory officials to reduce worker exposure to metalworking fluids in 1993, said the government had failed to act on the institute's recommendation or explain its reasons for not doing so."

"A Labor Department spokesman did not return a call from Reuters seeking comment on the clean air issue and suit against Chao. According to Labor Department documents, the agency handed out a set of guidelines for working with the fluids, but decided not to set new rules for exposure."

Here again we see unions eschewing collective bargaining in favor of legislation, government regulation and/or litigation. No wonder the collective bargaining process isn't what it used to be. Even the unions don't believe it's the best way to protect their members' interests.

Continued . . .

Employment application tips from HR Matters E-Tips

Here's another nice bit of advice in Q. & A. form from HR Matters E-Tips, a free e-mail newsletter you can sign up for here.

"Q: Should we require applicants to fill out an application form for every job opening even if we have their resumes? What should we do with
unsolicited application forms and resumes?

A: There are three good reasons to use a standardized application form.
First, a form can elicit information that may be missing from the
applicant's resume and help you fill in any gaps in the employment
history.

Second, it establishes a single, uniform document for each job
candidate. The standardization of your information gathering makes it
easier to compare job candidates objectively and can help protect
against discrimination claims.

Third, application forms are good vehicles for important notices, such as
equal employment opportunity statements, information about at-will
status, and background check requirements. Therefore, to maintain
uniformity and ensure that all applicants receive the notices, you should
require every candidate to submit an application.

The type of application form you use also can be important. Some
employers use the same application form for all positions, while others
use specialized forms adapted for each job. The job-related form
ordinarily includes a general section for collecting basic screening
information applicable to any job, and then has a job-specific section for
gathering information relevant to a particular position.

An application form that spells out the functions of the particular job, or
that includes a job description, can also be helpful in complying with the
Americans with Disabilities Act (ADA). These written job duties can be
used to identify the essential functions of a job for purposes of evaluating
a disabled person's ability to perform that job. Finally, no matter what
form you use, have it reviewed by legal counsel to ensure that it does not
contain questions or statements prohibited by law.

Unsolicited Applications and Resumes

The issue of accepting unsolicited applications and resumes is a more
difficult question, and there is an ongoing debate regarding the topic. An
argument in favor of this practice is that it provides expanded access to
qualified applicants. You never know when the profile of "just the right
person" might cross your desk, even though no job is currently available.

The acceptance of unsolicited applications and resumes, however, can
raise questions about the makeup of your applicant pool for affirmative
action compliance and equal employment opportunity purposes. For
example, government contractors that are required to implement an
affirmative action program must compile information regarding the
number of applicants who are females, minorities, disabled, or Vietnam-
era or disabled veterans. Thus, contractors may have to count as an
"applicant" anyone who is actually considered for an opening, even if the
person has only sent a resume and has not formally applied for that job.
Furthermore, if unsolicited applications and resumes are accepted and
then treated inconsistently, you may be exposed to claims that the
acceptance procedure itself is discriminatory.

The safest way to guard against these claims is to prohibit the
acceptance of unsolicited applications and resumes. However, you must
apply the policy without exception (i.e., you should discard all unsolicited
resumes), or you run the risk that your files may end up being used
against you in a hiring discrimination case.

At the same time, if you do decide to accept unsolicited applications and
resumes, you should accept all of them, again so as to be consistent and
not establish any discriminatory patterns. Finally, remember that once
you accept them, they then become employment records, and you have
to comply with state and federal record retention requirements dealing
with how long they must be kept."

The issue of unsolicited resumes is tough. The downside of keeping them and sometimes following up on them may be outweighed for some employers by the obvious benefits. Consistency is the key. A compromise is to keep for a set period of time (such as two months) and send form letters to that effect if there are no suitable openings when received. People can then resubmit resumes after that time has expired if they are still interested.

Continued . . .

Health insurance pools for small businesses: pros and cons

Here we go again with a health care story. It's just a popular topic I keep running into these days.

Business Week Online reports: "The Hidden Snags in Health-Care Pools."

"In theory, small businesses banding together for cheaper rates makes sense. In practice, legal constraints and limited bargaining power are big obstacles."

"In theory, by allowing small outfits to buy insurance together, the pools bestow some of the negotiating power that large companies enjoy. The pools are supposed to mitigate price hikes if an employee becomes seriously ill, since all individuals in the pool are considered as members of one large group for underwriting purposes. And the pools also aim to cut administrative costs."

"In reality, the pools often fail, usually thanks to a combination of factors. It might be that they don't attract enough member businesses and insurance companies, or because the pool becomes a refuge of last resort for workers with chronic conditions, making premiums too high to be competitive."

My bar association pool has become the refuge of last resort, and costs have indeed soared.

Continued . . .

Speaking of health care costs--a personal anecdote

OK, I admit it, I can't seem to get off this topic and back to reporting case law.

But here's what happened to me last night at Walgreen's. The guy in front of me got two prescriptions and paid all of $4.00. I, on the other hand, got my two prescriptions and paid $60.00. I doubt either of us paid anywhere near the retail cost to an uninsured person. But $2.00 a prescription? Come on . . . .

Continued . . .

Employers tackle employee waistlines

Workforce Management Magazine reports: "The Fight Against Fat Goes on the Offensive in the Workplace" (by Maryann Hammers).

"By one estimate, obesity-related conditions cost organizations $12 billion a year. Companies are putting diet and exercise plans in place to combat the trend."

The article profiles one employer's program. After a comprehensive employee health screening found that more than half its employees weighed too much, and almost three-quarters of them exercised too little, it launched a "10,000-Step Challenge."

"More than 2,800 . . . employees signed up. They donned company-issued pedometers to track their steps, with the goal of reaching 10,000 a day. Workers formed a 'Steppers' support group, and 15 employees, including a few executives, were selected to track their weight-loss and walking progress on the company intranet. Results were impressive. Participants lost an average of six pounds during the 12-week program, and 62 employees lost more than 10 pounds each."

The employer also offers "group, personal and online weight-management programs; nutritional counseling; low-fat meals and snacks in its cafeterias and vending machines; discounts on nutritional products and services; and an employee fitness center."

Could the benefits be worth the costs? You bet:

"Obesity has roughly the same association with chronic health conditions as 20 years of aging, according to the Centers for Disease Control. It contributes to heart disease, diabetes, arthritis and some types of cancer. The Surgeon General reports that more than 9 percent of the nation’s health-care expenditures--about $117 billion--and 300,000 deaths annually are directly related to obesity and physical inactivity. And a study published in the American Journal of Health Behavior showed that annual medical expenses for Dallas city employees ballooned from $114 for normal-weight individuals to $573 for the overweight to $620 for the obese."

How long until the employers who are aggressively cutting health costs begin seeking to exclude or reduce coverage of obesity-related conditions, or to charge more to obese employees? Would that be unlawful discrimination? Doubt it. Certainly would be an incentive.

Continued . . .

Strike updates

Faindlaw (AP) reports: "No Progress in Calif. Labor Strikes."

"An estimated half-million [LA] commuters faced another morning rush hour without city buses or trains as a transit strike entered its sixth day."

"Though negotiations between mechanics and the Metropolitan Transportation Authority have apparently stalled, talks with train operators, bus drivers and the authority have gained momentum."

On the So. Cal. grocery strike/lockout, no new negotiations were scheduled.

"The supermarket chains tried to sway public opinion with a full-page ad in Southern California newspapers Sunday that described their contract offers as 'more than fair.' "

Rick Icaza, president of the UFCW Local 770, took issue with the ad, which also ran Friday.

"How can it be fair if you reduce our medical benefits?" he asked.

"Average pay for clerks is about $15 an hour and most do not work full time. Workers currently pay no premiums for full health coverage and have a $10 copay for doctor visits and prescriptions."

"The companies want them to pay $5 a week for individual coverage or $15 a week to cover a family."

This is quite modest as copays and employee contributions go these days, even for skilled union employees (many of these employees are at best semi-skilled). I have $25 copay for doctor and $30 prescription (preferred nongeneric), and $1500 a month premium.

Here's the union's response to the company advertisements. Here's Albertson's 2nd quarter financial summary.

The grocery companies, while paying big bucks for full-page newspaper ads, seem not as interested in using their websites to promote their positions on the strike issues as the union is.

Here in St. Louis, our UFCW grocery strike goes on. Public support still seems significant, but store hours and services are expanding. The union avoided a real bad PR problem the other day by encouraging food pantry drivers to cross the picket lines to pick up donated food. Imagine the irony otherwise: food about to spoil due to reduced demand caused by strike can't be given away; the poor go hungry. Ouch!

Continued . . .

Changing views towards older workers

CNN reports: "Wisdom of the aged: Many older jobseekers may find themselves in short supply -- and in high demand."

"'More and more companies recognize the traditional skills that older workers bring to the table,' said Renee Ward, founder of seniors4hire, a Web placement organization specializing in the plus 50 set. 'Older workers are intelligent, experienced, flexible, and they have the soft skills needed to blend in well at a new company.' "

"But most of all, older workers are reliable. Ward said that many companies tell her they have trouble with young hirees 'coming in with bad attitudes.' "

"Retailers, restaurants, and business-service companies all say that they can't find enough qualified people. And, as the economy improves, the job squeeze will worsen."

"[A]s the oldest of the 76 million baby boomers (80 million counting immigrants) near retirement age, employers face a mass exodus of workers from the labor force. The Department of Labor estimates that 26 million Americans will retire from the current 147 million person labor force by 2008 and 4.6 million jobs will go unfilled."

"'Retirements will be a trickle the next few years but a tsunami after that,' said Howard Muson, an economist with the Conference Board and author of a report entitled Valuing Experience: How to Retain and Motivate Mature Workers."

"This will alter the way companies operate. Employers are just coming to realize, said Muson, 'that they were allowing, even encouraging, important skills and expertise to walk out the door.' "

"Muson said more than 80 percent of senior human resource executives who participated in an online survey had rehired retired workers, often in ad hoc jobs as consultants or private contractors. He cites three main reasons:

· To preserve the retirees' knowledge. Many a worker has built up valued skills over time. When that worker leaves there may be no one left with that know-how.

· To mentor younger workers. Companies often enlist retirees to pass their expertise on.

· To interact with old customers. Continuity is important to many customers. Many an older salesperson, for example, may understand customers' needs almost as well as they do."

The article concludes with some tips for older job seekers.

Continued . . .

Disability claim fatal to age discrimination claim

ABA E-Journal this week scooped a case I was planning to report, Detz v. Greiner Industries Inc. (3rd Cir. 10/7/03) Here's the full text of the opinion.

The plaintiff "forfeited his age discrimination claim because of 'patently inconsistent' statements made to the Social Security Administration in pursuit of disability benefits."

"In his application for disability benefits, Detz asserted he was disabled and unable to do any work. But in his age discrimination suit, he claimed he was qualified to do light-duty work."

"The decision shows attorneys have to exercise care in cases in which a plaintiff might pursue both disability and employment discrimination claims."

Likewise with Social Security, workers compensation, or private disability insurance claims and ADA disability claims. Pleading a high degree of disability, while helpful with the former, hurts with ADA claims, which require being qualified to perform the essential job functions (with accomodation if necessary). Technically, the issue is one of judicial estoppel, though it seems in a looser sense it may be material for impeachment ("were you lying then or are you lying now?").

Continued . . .

More good economic news portending jobs improvement

CNN reports: 'Factories in mid-Atlantic area took off in October."

Manufacturing activity in mid-Atlantic region up significantly "as firms hired new workers, the latest sign that factories may have finally worked their way out of a two-year slump."

Philadelphia Federal Reserve's monthly gauge of regional industry doubled to 28.0 in October from 14.6 in September.

New orders up to 29.0, highest in eight years, from 19.3 in September.

Employment index up to three-year high of 5.5 from -4.7 in September.

This is really good because it involves manufacturing and jobs, the two weakest indicators in the much-ballyhooed weak economy. Hopefully, this is not just a regional phenomenon, but typical of data that will be rolling in from other Fed regions.

Continued . . .

Great minds think alike (re health care costs and strikes)

Here's what it says about health care costs in a Q & A I just got in an e-mail newsletter from Workforce Management Magazine (sign up here)

Q. "Last year, there was a 40 percent increase in the health care premiums at my company. The company picked up 75 percent of the total cost, which amounted to a significant increase in benefits for those covered under the company health insurance plan. What are employers about rising health costs--especially since some people use more health care, and some use less. Should those who use less be rewarded?"

A. '[E]mployers have begun introducing consumerism and consumer-driven plans that also can be viewed as an attempt at equitable distribution of health care dollars. In one model, the employer allocates a specific dollar amount to a Health Reimbursement Arrangement (HRA) for each covered person (perhaps $1,000). The account is used to reimburse the first $1,000 of medical expenses before a “high” deductible kicks in and a traditional medical plan is layered on top. For big users of medical care, the account balance will be zero at the end of the year. For low users, accounts may be used to reimburse over-the-counter drugs, dental, vision or other qualified expenses, or the person may roll the balance to accumulate in future years."

"Perhaps a hybrid approach would have the employer offering more than one high deductible option as part of a consumer-driven health offering (perhaps $1,500 and $3,000). People who don’t use medical care as much would be able to buy into the $3,000 deductible option at a lower contribution rate."

"Regardless of what form they take, health plan designs that promote consumerism, make employees more aware of costs, and foster equitable treatment of all employees will play a growing role in employers’ health care cost management efforts."

SOURCE: Elizabeth A. Dudek, Vice President, The Segal Company, Washington, D.C.

Also see this on labor strife and health care costs: "More workers strike over healthcare benefits" (Christian Science Monitor).

"Though coincidental in timing, the [California grocery and transit] strikes aren't unrelated. Both unions are trying to renegotiate contracts that will boost medical benefits and cover soaring health-insurance costs. The two high-profile strikes follow dozens of recent union disputes in California and elsewhere over health benefits, an issue that may continue to plague contract negotiations coast-to-coast until the larger issue of health costs is addressed."

" 'We have a healthcare crisis in this country and that has spilled over into every union bargaining negotiation in the country,' says Kate Bronfenbrenner, director of Labor Education Research at Cornell University. 'Employers are feeling the pressure to cut costs and unions are trying to hold firm not just on behalf of organized workers but unorganized ones as well.' "

"Some experts say such disagreements between unions and employers cannot be solved from strike to strike, workplace to workplace. The healthcare issue is taking on a national prominence and may loom large in the 2004 presidential election."

" 'The fight over health benefits in union contracts across the country is the biggest cry yet for a larger look at legislative change at the national level,' says Professor Bronfenbrenner of Cornell."

Compare my comments yesterday on healthcare and here regarding the strikes.

Continued . . .

Interesting tech story

Reuters reports: "Juniper Aims to Reinvent Internet as an 'Infranet'."

"Juniper Networks Inc. on Wednesday unveiled a sweeping blueprint for a future communications grid that would be as global as the Internet but with the security of private networks run by many companies to protect trade secrets and secure transactions."

"Calling its vision of that next-generation system an 'infranet,' Juniper called on other network equipment vendors and telecommunications companies to work together on joint standards that would allow development work to begin."

I've wondered about the wisdom of carrying on confidential business across a public internet open to all. But I'm not sure this is a viable alternative. Who decides who gets access and who has too small of a business or is too high of a security risk? Unless entirely different hardware is used, is it really possible to separate the infranet from hackers coming on from the internet? I admit not having much tech knowledge, but still find these issues interesting.

Continued . . .

States address health insurance for small business with patchwork solutions

A piece in Business Week Online, entitled "Throwing a Line to Uninsured Workers" provides these sobering stats:

"[H]eads of small businesses rank the cost and availability of health insurance as the biggest problem facing their businesses. No wonder -- their deductibles are on average twice as high as those at big companies, and their costs are rising faster. Last year premiums at companies with fewer than 200 employees jumped an average of 16%, compared with 13% at big companies . . .. Many small businesses simply give up: Of the roughly 44 million Americans without health insurance, half work for a small company or depend on someone who does. . . ."

The article goes on to briefly discusses the wide variety of ways some state governments are attempting to assist with the problem.

I see three major structural problems not addressed by these patchwork approaches.

First, the expectation that health benefits be provided by employers is troublesome and outdated. It's quite clear to me that employees do not appreciate the cost of such benefits when provided as a perk.

We may be at a turning point right now on this aspect of the problem, with the grocery strike illustrating to employees and the public the extent to which continuing to provide good health benefits cuts into wages.

Economic efficiency and labor and consumer market competition is adversely affected when labor costs are so greatly impacted by health costs. Employee job choices are constrained by availability of health benefits. Our local union grocery stores, now suffering from the strike and lockout, should be able to compete with Wal-Mart on a more level playing field with respect to labor costs, instead of Wal-Mart, in addition to its other advantages, being able to benefit tremendously from providing much less in the way of health benefits.

Second, because they do not pay the rising premiums directly, employees lack incentives to economize on usage of medical services, driving up prices. Substituting government as a provider does not do anything to address this aspect of the problem.

Third, the health insurance market has become highly discriminatory. The more the size and health of the particular employer's workforce determines rates, the less effectively insurance serves its risk-spreading functions. Why shouldn't everybody to be in the same pool? Sure, it means that healthy people pay for unhealthy people, but that's what insurance is for -- healthy people become unhealthy and then get the benefit of premiums they may have paid for years at rates higher than if they had been individually underwritten while healthy.

Solutions? The opposite of California's employer-provided insurance mandate. Employers should be encouraged to pay emloyees the cash equivalent of the current value of health benefits instead of struggling with providing benefits. All Americans -- employed or not -- should have the opportunity to cover catastrophic health costs through a single-payor program funded by progressive income taxes or sliding-scale premiums based on ability to pay, not health status.

All Americans -- employed or not -- should have the opportunity to cover more routine health costs through special tax-free savings programs and a less regulated insurance market, allowing, for example, association coverage.

Disclosure: where I'm coming from -- I pay $1500 a month out of pocket for coverage of a family of five that was better coverage at less than half the cost five years ago. Members of my small law firm pay similarly high premiums, but due to health issues we find group coverage even more expensive, so simply do not have it at all, putting us at a disadvantage when hiring staff. I have an opening now and expect to lose out on some good candidates as soon as I inform them we have no group health.

Continued . . .

ADHD not ADA-protected disability, First Circuit holds

The First Circuit dealt with an employee claim of ADA disability based on ADHD in Whitlock v. Mac-Gray, Inc. (1st Cir. 10/6/03).

The employee contended his ADHD was a disability because it substantially limited a major life activity -- his ability to work. He argued that to function in the workplace he required that his condition be accommodated by providing partitions that blocked visual distractions and permitting use of a radio to block competing noises.

The court held this "evidence may establish that he has an impairment, but not that he is disabled for purposes of the ADA. 'It is insufficient for individuals attempting to prove disability status . . . to merely submit evidence of a medical diagnosis of an impairment.' "Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002).

The court also relied on the basic proposition that "[W]hen the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires . . . that plaintiffs allege that they are unable to work in a broad class of jobs." Id.

The plaintiff offered no such evidence, but conceded in his deposition that he was capable of performing his work despite his ADHD and that the employer believed he could do his job. The court was unimpressed with his doctor's "conclusory assertion of total disability -- an assertion lacking elaboration and support in the record sufficient to make the individualized showing of [his] particular limitations."

The court also found insufficient evidence of a perceived disability. The only potential evidence of this was that there had been a "continuing dialogue" between the employer and the doctor regarding the employee's impairment, and the company had agreed to the employee's requested accommodations, where it was undisputed that the employer regarded the employee as capable of performing his job.

Once again, this is not to say that ADHD can never be a disability under the ADA. Existence of a disability is a case-by-case decision; one can only say that here the evidence was insufficient.

I love the radio as a reasonable accommodation. Perhaps doctors who treat ADHD can medically justify the position that the distraction provided by a radio is less than other distractions there may be in the workplace. All I know is it sounds a lot like the argument I get from my teenager when I question her ability to do homework while listening to loud rock-and-roll. Come to think of it, I also used to claim I could study better with the stereo cranked up. I either know better now, or that's an ability you lose with age.

Continued . . .

LA transit strike pits blue-collar elite against working poor

Reuters reports: "Strike in Los Angeles Halts Public Buses, Trains."

"Los Angeles bus mechanics went on strike early on Tuesday halting the city's public buses in a move that also threatens to cripple rail services and strand up to 500,000 passengers."

"In a city dominated by cars, roughly 500,000 people rely on MTA buses and trains, Los Angeles officials said. Most of the passengers are the working poor whose income averages around $15,000 a year, making cars difficult to afford."

"The main sticking point is a health insurance trust fund used by the union to buy health care benefits for its members. Union officials want the MTA to increase its $16.8 million contribution to the fund. The MTA has accused the union of mismanaging the fund and demanded greater control over how the money is spent before agreeing to raise its contribution."

Haven't seen the old contract, but my guess is the mechanics earn many time what the average transit passenger earns. Shame the least of them suffers most.

Are there a lot of strikes this year, or am I just paying closer attention?

Notice the common theme--health care costs? Employers are bargaining hard over this, perhaps secretly hoping strikes will bring the political attention over health care costs to a head (finally).

Continued . . .

Calif. UFCW grocery workers join St. Louis brethren in striking

CNN.com reports: "70,000 grocery store workers strike."

"Facing 'major cuts' in salary and benefits, nearly 70,000 grocery store workers -- ranging from cashiers, to meat cutters, to pharmacists -- went on strike in southern California late Saturday, after failing to come to an agreement with their employers."

The union says the employers want to "shift $1 billion in healthcare costs" onto workers. The "supermarkets say they are trying to keep up with the rising costs of health care as well as compete with other stores that provide lower wages and fewer benefits."

The stores say "[t]he cost of providing health care benefits to [UFCW] grocery emplyees has risen by more than 50 percent during the four years of the expired contract."

The grocery stores have "fully executed plans in place in preparation for a strike and will continue operating their stores and serving customers," according to their press release.

Well, the more the merrier. St. Louis grocery workers are still out. The stores are now adding hours and services (deli, etc.) that had been closed.

I expect the ultimate resolution will not make the union very happy. Any concessions the employers make to end the strike here will have to be relatively minor, given that the employers have so firmly stated their intention not to budge -- their credibility in future negotiations is on the line.

The stores here in St. Louis can operate staff-wise, but do appear to be taking a hit in volume from people who are not crossing the picket line. I saw a lot of cars in the parking lot Saturday at a (nonunion) store near my home. That's only short-term support for the union, since it involves shopping nonunion. Long term it kills their jobs by undermining their employers' competitive position.

Continued . . .

Chicago garbage strike settled

Findlaw (AP) reports: "Tentative Deal in Chicago Garbage Strike."

"A tentative agreement was reached between garbage collectors and the hauler's association early Thursday, ending a strike that left heaping piles of trash throughout the Chicago area and neighboring communities."

"Chicago Area Refuse Haulers Association spokesman Bill Plunkett said the association accepted a proposal offered by the Teamsters after a nearly 20-hour long bargaining session with a federal mediator."

"Teamsters and the waste-hauling association, which represents 17 private companies, clashed over wages, benefits and contract length. The Teamsters spent eight days on strike."

"Plunkett said the latest proposal calls for a 28 percent increase in wages and benefits over the next five years."

Sounds like the employers caved. Who else is planning on getting 28% over 5 years? It should be 1-3% a year. Probably most of those Teamsters won't be working for those companies in 5 years, as the municipalities will terminate contracts, reduce frequency of service, and/or make other arrangements for their waste hauling (e.g., bring it back in house to city sanitation departments).

Continued . . .

Supreme court to hear recovered drug addict ADA issue

Findlaw (Christian Science Monitor) reports: "Limits of disability act tested"

"Would a company that refuses to rehire somebody who says he's overcome his drug and alcohol addiction be guilty of violating the Americans With Disabilities Act (ADA)?"

"That is the question the US Supreme Court takes up Wednesday in an Arizona case involving Hughes Missile Systems Company in Tucson with major implications for companies with zero-tolerance hiring and firing policies."

An employee tested positive for cocaine and resigned in lieu of being fired. Two and a half years later, he applied for another job at the company after completing a rehabilitation program.

The company refused to consider him for hiring, under an unwritten policy of refusing to rehire anyone fired for misconduct. He was treated the same as any other employee who had used drugs, company lawyers say.

He says the company's refusal to hire him is discrimination based on his past addiction in violation of the ADA.

A federal court judge dismissed the case. A federal appeals-court reversed.

The article nicely lays out the positions taken by the employee, employer, and government as amicus.

Recovered addicts, but not current users, are protected under the ADA. If the Court goes with the ADA's intent, it seems the employee wins. But the employer's argument that it has a neutral across-the-board disciplinary policy has some appeal too.

I think the government's argument will tip the scale in favor of the employer. It says a ruling in favor of the employee "would undercut the effectiveness of workplace conduct rules, 'which represent a legitimate effort by employers to promote workplace safety and productivity.' "

Continued . . .

Do Americans work too much?

CNN has this interesting piece: Should America be France? "Do Americans work too much?"

"John De Graaf is busy, trying to make you less so. A Seattle-based writer and documentary producer, De Graaf is one of the leaders of a loosely connected group of social activists who believe Americans work too much. To dramatize the point, De Graaf and others are organizing an Oct. 24 event called 'Take Back Your Time Day.' "

Wonder how much time he's spent organizing it?

"Americans, on average, work 350 hours more each year than Europeans. That's 9 weeks of labor. 'Europeans have made a tradeoff between quality of life and hours worked,' said De Graaf. 'We Americans have chosen to trade all our increases in productivity for more stuff. And to pay for it, we need to work even more.' "

Continued . . .

Good news in latest jobs stats

CNN reports: "Jobless claims drop to 382,000"

New jobless claims last week fell from a revised number of 405,000 the prior week to 382,000 -- the lowest since the week of Feb. 8, and below the 400,000 level many economists consider a benchmark for labor-market weakness.

"Claims were above 400,000 from mid-February to mid-July, 22 straight weeks. After a brief recovery in late summer, claims rose again and hovered above the 400,000-per-week level throughout September. Still, the Labor Department reported recently that non-farm payrolls grew by 57,000 jobs in September."

"The four-week moving average of new claims, which irons out the volatility of the weekly data, fell in the latest week to 393,500 from a revised 405,000 the prior week --again the lowest since the week of Feb. 8."

A third measure, continued claims, people out of work for a week or more, "fell to 3.64 million for the week ended Sept. 27, the latest data available, from a revised 3.65 million the prior week."

This is really starting to look like a turnaround. If it keeps up, maybe the Dems will have to find another campaign issue.

Continued . . .

ADA diabetes case finds protected disability based on substantial limitation of major life activity of eating

(I've been meaning for over a week to get back to posting some significant Court of Appeals decisions. Unfortunately, to cover them in the manner I prefer can be more time-consuming than posting some of the items I run across in the media. Hopefully, this is the first of several significant cases I’ll be covering this week.)

In Fraser v. U.S. Bancorp (9th Cir. 9/8/03), the plaintiff contended the employer violated the ADA by discriminating against her because of her diabetes. The 9th Circuit reversed summary judgment for the employer on the issue of whether her diabetes was a disability under the ADA.

This case is instructive on several levels. It illustrates well the individualized fact-finding engaged in by the courts in determining whether an individual qualifies for protection under the ADA. It also is an example of outrageously ignorant employer conduct. Finally, there are a couple of procedural tips for attorneys.

The plaintiff's diabetes

The plaintiff suffered from "type I insulin-dependent diabetes with recurring acidosis complicated by pulmonary impairment," which the court characterized as "severe and life-threatening," with blood sugar levels that are very difficult to control.

Treatment entailed four or more daily blood sugar tests and multiple injections of varying amounts and types of insulin or glucagon, depending on factors such as "how much she ate, how active she was that day, her blood pressure, kidney function, infections, circulation, etc."

Ignorant employer conduct

The plaintiff worked as a Senior Account Specialist for a bank. Her supervisor notified her that she could not eat at her desk. Later, she recorded a "dangerously low" blood sugar level, becoming disoriented as her blood sugar dropped further. She had food in her desk, but because of the supervisor's earlier admonition, she first explained the situation to him and asked permission to eat. He told her to "come back when she had an intelligent question to ask." She "became even more disoriented and her memory was so impaired that she could not remember how to use the telephone." She again unsuccessfully sought the supervisor's permission to do something, eventually passing out in the bank lobby.

What can I say? That if she had died, an ADA lawsuit wouldn't have been the worst of the legal problems faced by the Bank and the manager?

Diabetes as an ADA disability

In analyzing this issue consistent with Supreme Court precedent, the court considered mitigating measures such as insulin injections and other drugs, as well as natural mitigating measures, such as the body's natural response to cope with physical impairments. It also noted that the side effects and burdens of mitigating measures must be taken into account.

The court cautioned that whether an individual is disabled under the ADA is a "fact.based analysis that knows no bright lines. We do not decide whether every diabetic is disabled."

Considering whether the plaintiff was substantially limited in any major life activity, the court found she was substantially limited in eating. Following decisions from several other circuits, which it cited, the court concluded that eating is a major life activity.

While that conclusion may seem like a big “duhh,” the court cautioned against going too far with it:

“[E]ating specific types of foods, or eating specific amounts of food, might or might not be a major life activity. If a person is impaired only from eating chocolate cake, he is not limited in a major life activity because eating chocolate cake is not a major life activity. On the other hand, peanut allergies might present a unique situation because so many seemingly innocent foods contain trace amounts of peanuts that could cause severely adverse reactions."

“As to the type of eating that [the plaintiff] alleges, it is a major life activity and certainly falls within those activities that are of central importance to most people's daily lives. Not only must she not eat certain foods, but she must carefully assess her blood sugar before putting anything into her mouth. It is the physical activity of eating in general that she argues is impaired, and we agree that this activity is a major life activity under the ADA."

Here’s a gem the court couldn’t resist:

"Though we hold that eating is a major life activity, we do not thereby invite all those on a diet to bring claims of disability. Not every impediment to the copious and tasty diets our waistlines and hearts cannot endure is a substantial limitation of the major life activity of eating. We must carefully separate those who have simple dietary restrictions from those who are truly disabled. At the same time, we must permit those who are disabled because of severe dietary restrictions to enjoy the protections of the ADA."

The plaintiff had severe dietary restrictions because her "diabetes regimen is perpetual, severely restrictive, and highly demanding. [She] must test her sugar several times daily, each test is painful, and takes close to five minutes to complete. She must vigilantly monitor what and how much she eats. She must time her daily shots and meals so carefully that it is not safe for her to live alone. . . . She must always have certain foods available in case her blood sugar drops or skyrockets. She must always be able to take time to eat or give herself injections to balance her blood sugar levels. She cannot put a morsel of food in her mouth without carefully assessing whether it will tip her blood sugars out of balance. . . . Unlike a person with ordinary dietary restrictions, [she] must monitor much more than what and how much she eats."

"Unlike a person with ordinary dietary restrictions, she does not enjoy a forgiving margin of error. While the typical person on a heart-healthy diet will not find himself in the emergency room if he eats too much at a meal or forgets his medication for a few hours, [the plaintiff] does not enjoy this luxury."

Procedural goof – a good argument waived

In the alternative, in support of her retaliation claim, the plaintiff argued that even if she was not actually disabled within the meaning of the ADA, she had a good faith belief that she was (and that she therefore was entitled to the accommodation of being allowed to eat at her desk).

Because one may be protected against retaliation for protesting what one believes in good faith to be discrimination, even if one is wrong, this potentially could have saved her case had court rejected her claim of actual disability.

Unfortunately for her, she failed to preserve this issue because she did not allege a good faith belief in her disability in her complaint, in response to the employer's summary judgment motion, or at any other time before the District Court, raising it only on appeal, when it was too late.

Procedural goof -- evidence not presented in response to summary judgment motion

On appeal, the plaintiff cited to several pages from depositions which she had not cited to the District Court in response to summary judgment motion. This was therefore not in the record on appeal and not considered by the court.

What these two goofs have in common is the failure -- which my experience suggests is quite common among employment attorneys -- to devote the same degree of time, care, and expertise to the summary judgment process that they devote to the discovery process. Taking the world's best deposition is of little use if one fails to read it thoroughly and cite it properly at the summary judgment stage. Having a good argument is of no use if one fails to think of it until after losing summary judgment. Unfortunately, summary judgment motions are too often delegated to inexperienced associates and/or handled in haste.

Summary judgment evidence

There was an issue about whether the plaintiff's diary could be properly considered. The employer argued it could not, because was inadmissible hearsay. The plaintiff responded that the employer's request to strike was not a proper formal motion to strike, so it waived this objection.

The court rejected both positions. As long as the objection was "clear, specific, and timely" in the employer's summary judgment reply it did not have to be the subject of a separate motion to strike.

The court did not need to decide whether the diary was admissible, because "at the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." The plaintiff could have testified to the facts contained in the diary from personal knowledge or used the diary to refresh her recollection, so it was properly considered on summary judgment.

Continued . . .

What chutzpah: claiming workers' comp for workplace suicide by workplace killer of three

Under heading "Oddly Enough," Reuters reports: "Gunman's Mom Wants Worker Compensation."

"The mother of a man who killed three co-workers before shooting himself in a workplace rampage has asked the company to compensate her for her son's death because it occurred at work."

The company, Modine Manufacturing Co., has denied the claim. "The company quickly approved the claims filed by the families of [his] victims, but Modine has no intention of compensating the gunman's family."

"Police said [he] brought a Glock semiautomatic handgun to work on the night shift at the plant near Jefferson City, Missouri on July 1. Police said Russell appeared to target certain colleagues as he walked from station to station spraying bullets." Three died, five others were injured. He shot and killed himself after exchanging gunfire with police.

Give me a break. That's all I can say.

Continued . . .

Whistleblower settlement announced by Coke

CNN (Reuters) reports: "Coke settles lawsuit with former finance director."

"Coca-Cola Co. said Tuesday it settled a $44.4-million lawsuit filed by a former finance director who claimed that he was fired for revealing alleged fraud and other wrongdoing at the soft drink company."

"The world's largest soft drink maker said it had agreed to pay Matthew Whitley $100,000 and severance in connection with his dismissal earlier this year. The company also said it would pay $300,000 of Whitley's legal fees."

"Coca-Cola and Whitley will agree to continue cooperating with federal investigators and the SEC as part of the settlement."

Whoah--a $44.4 million lawsuit! Why do reporters cite these demand figures as if they were meaningful measures of the value of a lawsuit? A plaintiff can ask for the moon, but it doesn't mean squat.

This sounds like a fairly large settlement, but the guy was probably making 6 figures plus, so it really amounts to only a partial year's pay.

Why was it disclosed and not settled confidentially, like most employment lawsuits? Probably at the insistence of the SEC. Similarly, once the EEOC is involved in litigation, confidential settlements are disallowed by the agency, and press releases follow settlement. Otherwise, employers insist on confidentiality, and plaintiffs typically agree, preferring bucks to fame.

Continued . . .

St. Louis grocery strike update

As day 2 of the grocery strike begins, the following news from last night's TV newscasts is available:

The 2 non-struck chains did follow through with the lockout threat.

The stores are significantly limiting operating hours: to 10AM to 7PM (many were 24 hours, or something like 6AM to 10PM).

A number of people were shown on TV who were there at 7 or later to shop and inconvenienced; they took it well, said they'd just have to return, and were apparently totally unfazed by crossing a picket line. (One young dude crossed behind the camera during an interview, blurting out using bleeped out expletives: " **** **** unions!")

KMOV TV's website's instant poll showed a slight majority would not cross a picket line to buy groceries. This means many will go to Sam's, Wal-Mart, Walgreens, or across the river (Illinois stores are not in the bargaining unit), because the union lists only 10 union stores in all of St. Louis City and County as acceptable alternatives.

Continued . . .

A feminist critique of the Family and Medical Leave Act

FindLaw's columnist Joanna Grossman writes: "Why the Family and Medical Leave Act of 1993 Should Be Amended."

"The good news is that most employers covered by the FMLA have complied with its terms and made caretaking leave available on gender-neutral terms. But the bad news is everything else."

"Generally, men still don't take caretaking leave. Generally, as they did prior to enactment of the FMLA, women take caretaking leave whether they are guaranteed reinstatement or not. And generally, employers continue to view women as more costly - and therefore less desirable - as employees, because employers expect that women will take more leave than men."

"Women in 1992--as they do today--performed the majority of caretaking tasks for children, even in two-income households. And, unsurprisingly, this allocation of childrearing responsibility induces gendered leave-taking patterns."

"Against a backdrop of a culture in which women are in fact primary caretakers--and pushed to continue in that role--[the FMLA's] protections do little to induce a reallocation of parenting responsibilities toward men."

"To promote equality, an amended FMLA would need to do more than simply accommodate motherhood, as the current FMLA does. . . . [It] would also have to eliminate the incentives employers have to discriminate against female employees who are or are likely to become mothers."

"This is where the current FMLA's vision of equality falls short. Providing fathers with the formal opportunity to take parenting leave--in a society in which social, cultural, and economic forces make it unlikely they will do so--does little to force equal parenthood."

"The FMLA should be re-evaluated - and potentially amended - on the occasion of this anniversary. The goal should be to see whether there is a way in which it could make paternity leave--and paternal caretaking--more enticing."

Here's the feminist agenda nakedly revealed. Equality under the law is not enough. Society must be changed--by the law. The law should "force equal parenthood." She just can't stand the thought that many new mothers freely choose to spend more time mothering than new fathers choose to spend fathering -- and would so choose no matter what the law provided.

And missing from this retrospective analysis is the tremendous abuse of FMLA that takes place under the guise of "serious health condition" leave, especially intermittent leave, which has substantially mucked up employers' legitimate efforts to enforce reasonable attendance requirements.

Continued . . .

On the ropes, Calif. Gov. Davis approves monumental health care bill

Sacramento Bee reports; "Davis approves health care bill."

"Gov. Gray Davis, fighting for political survival, signed a landmark law Sunday that will require many California companies to buy employees health insurance and extend coverage to more than a million uninsured workers."

"The measure, bitterly opposed by businesses, will compel all firms with 200 or more employees to buy medical coverage for workers and their families by 2006. Companies with 50 to 199 employees must purchase insurance for workers by 2007."

Sounds great (at first), but what does it do about reining in costs? Now there will be guaranteed demand for insurance, providing a price support. What about the disparate rates being offered to different companies? Does this discourage entrepreneurship and self-employment?

Continued . . .

This blawg mentioned in print

Here's a delayed thanks to Andy Meisler of Workforce Management magazine for inclusion of this blawg in his article "They Came From the Internet; Workforce-centric "blogs" proliferate" (in the September issue). We managed to grab his attention within a week of "going public" with this blawg.

The main blawg profiled was Janell Grenier's benefitsblog.

A courtesy copy of the magazine tipped me off to the fact they are producing some excellent content, linking subscription-only with free web content. Some worthy articles from the September issue:

"Cracking the Ex-Files" -- "Conventional wisdom says that former employers won't give references. But, as with so many things, the conventional wisdom is wrong." Good suggestions for getting useful information on a job candidate from references.

"Mind Field" -- "Almost everyone agrees that depression is a disease that endangers millions of lives and livelihoods. It also cost businesses billions of dollars each year. But what should businesses do about its treatment? That's where the arguments begin."

"Discovering the Law of Gravity" -- "To jurors in an employment law case, some things are as certain as gravity. But they're often the very things that employers and their attorneys overlook." Be careful telling the jury about at-will employment -- it seems as certain as gravity that "employees should be warned by their bosses about bad behavior; everyone deserves a second or third chance; it is not fair for a company to fire an employee without cause." An experienced trial attorney discusses this and other jury communication issues.

"Sickened by the Cost of Absenteeism" -- "Internally devised tracking systems, off-the-shelf software and outsourced absence reporting services are all growing in popularity as employers try to figure out where an estimated 15% of their payroll is going."

After reading this issue, I bought a subscription for our office lobby, and will mention future stories of interest here in this blawg.

Continued . . .

Critique of new union dislcosure rules

Not surprisingly, the National Right to Work Foundation says :"Department of Labor Waters Down Proposed Changes in Union Reporting Requirements"

See this related post yesterday.

"As part of an apparent effort to soften the blow to union officials who have opposed the notion of increasing union accountability from day one, several substantial, last-minute concessions were made."

"For example, the threshold for itemization of expenditures was raised to $5,000 from an originally proposed level of $250, allowing the concealment of a vast majority of union disbursements."

"The new disclosure requirements also fail to require any kind of independent audit or verification -- an exemption that companies and non-profit organizations do not enjoy."

"And last, distinct categories of expenditures have been arbitrarily lumped together -- such as lobbying and political activism -- thwarting employees from learning to what extent union officials are playing politics with workers' money."

Continued . . .

Chicago sanitation workers continue to strike; St. Louis grocery workers start strike

Findlaw (AP) reports: "Trash Piles Up As Chicago Workers Strike."

"Rats and other vermin scuttled through overflowing trash bins Monday as thousands of garbage haulers stayed off the job for a sixth day in a contract dispute. Negotiations were scheduled to resume Tuesday."

"The Chicago Cubs host the first two games of the National League championship series starting Tuesday, putting the city in the national spotlight. City officials have said trash will be collected at Wrigley Field and surrounding businesses during the series."

"The city's Department of Streets and Sanitation is picking up trash at hospitals, smaller homes and in some public areas. Mayor Richard Daley said the city will have to recoup the money it's spending to alleviate the trash overflow, either from the union, the refuse haulers association or both. 'The taxpayers are not going to pay for this,' he said."

That comment does not bode well for an early resolution to this strike. Or does it?

St. Louis UFCW-represented grocery workers struck the city's 3 major chains today (actually they struck the out-of-town chain, but the two local chains have stated intentions to lock them out). Teamsters drivers have threatened to support the strike by ceasing deliveries.

It was eerily quiet at my local store this morning, just minutes after the strike vote results were announced. A large guard with a gun paced outside, and management huddled in the aisles, but no pickets were there yet.

A problem is that these three chains command such a large market share that shopping at other union stores, which is what the union wants us all to do in support of their strike, is very difficult and inconvenient. I expect Wal-Mart and Sams to post immediate gains, as people seek to simply avoid crossing picket lines, not to truly support this ill-advised strike. So they're driving the consumer into the hands of the enemy. Ingenious strategy. That'll show those selfish store owners!

A strange time, economically speaking, for unions representing some of the least skilled, most easily replaced workers to flex their muscles. And at the grocery stores, I expect no matter how it turns out, we'll see many more of those check-yourself machines installed. They're quite easy to use and popular, and will eliminate jobs. So, as with the UAW, we'll see unions trading better wages and benefits (for the RIF and plant closing survivors) for fewer jobs. And thus the unions contribute to the jobless recovery they bemoan.

Continued . . .

EEOC sues Bechtel over alleged discrimination against Iraqi

Findlaw (AP) reports: "Bechtel Sued Over Alleged Bias Vs. Iraqi"

"Bechtel Corp., which stands to reap as much as $680 million in contracts to rebuild Iraq, is being sued by the [EEOC], which claims the company discriminated against and fired an Iraqi employee in New Jersey."

"The suit . . . alleged the company did nothing to stop discrimination and harassment against him after the Sept. 11, 2001 terrorist attacks, and fired him in June 2002."

"The lawsuit states that on Sept. 11, and continuing afterward, [the Iraqi-American employee] was subjected to physical attacks, as well as verbal assaults, including being called a '(expletive) Arab,' and was told to 'go home to wherever you came from.' "

"He complained to Bechtel officials to no avail, and was excluded from meetings without justification, according to the lawsuit."

"The lawsuit is the EEOC's ninth claiming post-Sept. 11 discrimination. The commission has received more than 800 complaints alleging discrimination against individuals who are or who are perceived to be Muslim, Arabic, Middle Eastern, South Asian or Sikh."

"Nearly 100 people who claimed such discrimination have received more than $1.6 million in compensation through the EEOC's enforcement, mediation, conciliation and litigation efforts."

Clearly, the EEOC has been bird-dogging these cases to make a point.

Remember, sexual harassment principles are now routinely applied to harassment based on race, color, national origin, religion, disability. Responsiveness to complaints (and avoidance of retaliation for making complaints) is the key to successful prevention of liability.

Continued . . .

New union financial disclosure regs

Findlaw (AP) reports: "U.S.: Large Unions Must Disclose Finances."

"The Bush administration issued new regulations Friday requiring the nation's largest labor unions [income of more than $250,000] to disclose details of their finances, including how much they spend on politics and lobbying, gifts, overhead and management."

"Most labor officials are dedicated to the well-being of their members. But the current financial disclosure forms that unions file provide little of value to rank-and-file members about their union's finances and operations, and they have failed as an effective deterrent against financial misconduct," said Labor Secretary Elaine Chao in a statement.

"The rules take effect next year, though unions will not have to file a report until March 2005."

"Large unions now can lump together much of their transactions. For example, one form filed with the department said a union spent $62 million on 'disbursement of grants to joint projects with state and local affiliates.' Another reported $4 million spent on 'sundry expenses.' "

"Such broad categories make it easy to hide possible embezzlement and mismanagement, labor officials said."

Let the sun shine, let the sun shine in . . .

Continued . . .

Where our tech jobs are going

CNN (Reuters) reports: "Jobs abound in India's tech sector"

"Companies are slashing payrolls in the United States and Europe to cut costs, moving software work offshore and creating thousands of jobs for India's low-cost engineers."

"India's software sector. . . added 130,000 -- nearly 25 percent -- to its workforce in the year to March, taking the sector to 650,000. Wage costs are rising but are not yet a threat for a nation that churns out about 200,000 engineers per year, analysts say."

"Software workers with two years of experience are paid . . . roughly one sixth of what their U.S. counterparts earn," which is still "a princely wage" in Indian terms.

"India's software services exports rose to $9.5 billion in the past year to March and are forecast to grow 26 percent this year."

"A fall in U.S. employment visas for foreign workers is partly driving the expansion plans of high-tech firms such as IBM, Accenture Ltd and Oracle Corp. in India. Visa curbs discourage Indians from seeking employment abroad and some are returning from a stint overseas."

So immigration policy designed in part to protect American jobs is undermining them, as the jobs are exported, instead of workers imported.

Continued . . .

Another perspective on unemployment stats

From a historical perspective, this business about the awful economy under Bush looks awful whiney.

The current unemplyment rate is 6.1%, and we've only had two recent months when it was higher (6.4 in June and 6.2 in July).

It was 6.1% or higher CONTINUOUSLY from 11/74 through 3/78, over 3 years, and again from 1/80 through 7/87, over 7 years, and 11/90 through 7/94, over 3 years.

So in the last approximately 30 years, things have been worse for almost half that time.

Look at this BLS graph of unemployment since 1970 .

Looks to me like in absolute terms the current rate is quite normative, and we just had a reverse bubble in the 90's, corresponding roughly to the dotcom bubble. If we can't adjust our expectations to these historical facts, we may do all kinds of stupid policy (and political) things trying to fix what ain't really all that broke.

Continued . . .

Bank One lawsuit over employee theft of confidential information by email

Findlaw (AP) reports: "Bank One Accuses Ex-Workers in Lawsuit."

"Bank One Corp. has filed a lawsuit alleging that five former employees took confidential information on wealthy clients when they left for new jobs with Smith Barney."

"[B]efore they quit, the five defendants used e-mail to 'transfer confidential customer information from their Bank One computers to outside personal e-mail addresses,' according to the lawsuit."

"The lawsuit also alleges that the defendants began preparing to solicit Bank One customers at least six months before they left the company."

Count on hearing of many more such cases. Today's technology makes theft of trade secrets frighteningly easy. But there are strong technological and legal ways to fight back. For one, I bet these employees thought they hadn't left any tracks because they cleaned out their email boxes before they left, but smarter computer spies either had caught them in the act or later found tracks on their hard drives. "Deleted" doesn't mean "gone," just "harder to find." And personal e-mail addresses and home computers aren't private once a lawsuit is filed. It's "Spy vs. Spy," and corporate espionage is a multimillion dollar business.

Continued . . .

September employment data a nice surprise, but perplexing

CNN reports: "Payrolls in surprise increase; unemployment rate steady."

"U.S. payrolls grew in September for the first time in eight months."

"Unemployment held steady at 6.1 percent in September. . .. Payrolls outside the farm sector rose by 57,000 jobs after falling a revised 41,000 in August. It was the first gain for payrolls since 158,000 in January."

Strangely, this month the household survey varied from the payroll figures in the opposite direction compared to the disparity of previous months, which I had noted recently. It showed a loss of 52,000 jobs.

"Nine million people were unemployed in September, the department said, 2.1 million of whom have been out of work for 27 weeks or longer. The average duration of unemployment was 19.7 weeks and has in recent months been the longest since 1984."

Continued . . .

Deeper look at job figures more optimistic

CNN reports: "Job market may be better than it looks, some economists say."

"Carnegie-Mellon professor Allan Meltzer, a scholar at the American Enterprise Institute, a conservative think tank, presented the minority case in a recent opinion piece in the Wall Street Journal."

"Meltzer noted a contradiction between the government's monthly report on unemployment and its report on payrolls."

"According to its survey of businesses, payrolls outside the farm sector are 2.7 million jobs lighter than they were when President Bush took office in January 2001. Its "household survey," which generates the unemployment rate, shows only 220,000 fewer people employed since then."

A huge difference indeed. Even if 1 million is due to changes in methodology of the household survey, mentioned later in the article, that leaves a gap of almost 1.5 million.

"Meltzer thinks the household survey is more accurate, since it's more likely to include small start-up companies and people who are self-employed."

"'Don't believe ... the widely reported loss of millions of manufacturing jobs since the Bush administration took office,' Meltzer wrote. 'All these alleged facts are either wrong or greatly exaggerated, based on the same faulty source.'"

Small businesses employ more workers than big businesses, and created millions of jobs in the five years ending in 1998, when bigger companies were downsizing.

"More recently, non-farm 'proprietors' income,' a Commerce Department gauge of the income of small-business owners and the self-employed, has risen 8.4 percent in the past year, compared with the sluggish 1.4 percent growth in private wages and salaries."

This gain in proprietors' income may well reflect small-business job creation.

"Nevertheless, most economists doubt that the household survey -- which has shown a net gain of 313,000 new jobs in the past year, versus a loss of 463,000 jobs in the payroll survey over the same period -- paints the most accurate picture of the job market."

Soapbox: These statistical deviations are fascinating -- and frightening. So much hangs on media reporting of the state of the labor market -- consumer confidence and spending, voter behavior, policymaking, stock markets, etc. An accurate, multifaceted understanding of the issue that cannot be captured in a single figure is essential. And numbers that may be ignoring significant trends toward self-employment and business creation are misleading and harmful.

Continued . . .

Online lawyer referral service

Business Week Online has this story: "Online Lawyers: Starting to Click," profiling Dmitry Shubov's LegalMatch.com:

It works like this: "Free to anyone looking for a lawyer, potential clients fill out a series of online forms that are intended to cover the issues typically canvassed in the first 30 minutes of an initial, in-office consultation. LegalMatch then determines which area of law the case falls under, and posts a description on a members-only Web site, where member attorneys with specific expertise can review it. Those interested in taking on the brief then bid for the work. The site gets its revenue from subscription fees paid by the lawyers who sign on."

"To say that the legal profession is divided by entrepreneurial attorney Shubov's innovation would be an understatement. The Utah State Bar is currently negotiating a deal that would see LegalMatch replace the state's existing, not-for-profit referral service."

"Not all bar associations view LegalMatch so favorably. . . . Chris Burdick, executive director of the Santa Clara (Calif.) County Bar Association, a voluntary organization that runs its own online referral service, is concerned that such services don't have to register with state bar associations, and also because they keep the names of lawyers who register to themselves. That means, she says, that there is no way for consumers to rate the overall quality of LegalMatch's lawyer-screening process."

This seems a no-brainer: it's a win-win situation. The only loser is the bar association that is in essence a competitor with such a service when it offers its own referral service. We should stop paternalistically acting like clients aren't smart enough to pick a lawyer and realize the Internet opens markets and provides more information in this area, as in all other businesses.

Continued . . .

Death knell to overtime reform?

CNN reports: "Labor scores rare victory in Republican-led House."

"Organized labor scored a rare victory in the Republican-led House Thursday when lawmakers opposed a Bush administration proposal that foes say could cost millions of Americans overtime pay."

"On a nonbinding vote of 221-203, the House backed a Senate-passed provision to block the proposed expansion of overtime exemptions for white-collar workers under the 1938 Fair Labor Standards Act."

Continued . . .

From jobless recovery to employee shortage?

Business Week Online has this story: "Coming Next: A War for Talent;"

When employment finally picks up, "Experts predict that annual voluntary turnover could rise to 20% or more for white-collar workers, as companies bid for top talent and star employees start heading for the exits."

"READY TO BOLT. It has been three long years of doubled-up workloads, minuscule raises, and ungrateful bosses -- and American workers are fed up. In the late 1990s, when even modest performers could drum up multiple job offers, such treatment would have led to a mass exodus. Today, it has many workers quietly updating their résumés and biding their time."

Survey estimates of such employees range from 15-50%.

"The bottom line: After years of cracking the whip, employers who want to win the coming war for talent need to start giving their troops a compelling reason to stay."

"Most susceptible of all are the people companies can least afford to lose." A recent survey found the best workers had the worst attitudes and were more likely to be planning a job search.

"[B]usinesses need to get moving -- now. Managers need to do a better job of differentiating stars from underachievers. Well-structured incentive pay, such as stock or options tied to specific performance goals, can help. But even that will do little to motivate employees if the job feels like a dead end. Managers should be looking for ways to give star players more responsibility, greater autonomy, and a clear shot at advancement."

"After all, the best time to talk your most valuable players into sticking with the team is before they've begun scouting opportunities with competitors."

Continued . . .

Interesting commentary on search engines and paid-inclusion links

Business Week Online features a story "Web Searches: The Fix Is In" dealing with the paid-inclusion issue. Interesting to anyone who uses search engines regularly (that's everyone, right?)

You expect if you "[t]ype in a couple words, . . . the engine, fueled by its spiders and scientific algorithms, promptly provide a list of Web sites, starting with the most relevant. Right?"

"Not so fast. "[A] host of search engines, including MSN and Lycos, have sprinkled growing numbers of paid corporate Web pages into the search results. . .. This practice is a booming business, one expected to double this year, to $200 million, and to reach $600 million by 2007. But unlike the clearly marked advertised links that show up next to search results, these paid inclusions are virtually invisible to average Web surfers."

"Controversy over paid inclusion is driving a wedge through the search industry. At the heart of the issue is whether the industry's content will be swayed by advertisers. Google, the leading search engine, steers clear of paid inclusions, saying that they undermine confidence in the objectivity of search results. Instead, Google relies entirely upon its technology for the search, and features paid ads only in clearly marked boxes near the search results. AOL uses Google technology and follows the same line. But others, including Yahoo, say that paid inclusion can provide users with better information. And they maintain that their search results are still displayed in order of relevance."

"Yet an investigation by BusinessWeek, based on more than 30 interviews and analysis of dozens of Internet searches, suggests that paying customers frequently fare better. Indeed, out of 20 advertisers and online marketing pros interviewed by BusinessWeek, 10 had experienced firsthand a boost in search-engine rankings when they signed up for paid inclusion. Says James Taylor, CEO of AICompany.com, a search-marketing company, 'Paid inclusion dilutes the accuracy and relevance of a search engine.'"

"Despite criticisms, the paid-inclusion business addresses some very real needs. One biggie is the sheer number of Web pages tucked away in corporate databases, where search-engine spiders have a difficult time navigating. By letting, say, Staples.com pipe its data directly to a search engine, a user seeking 'inkjet cartridges' could get a fresh listing from Staples.com that might not otherwise show up. 'We use [paid inclusion] only if it's improving the relevance of our results,' says Tim Cadogan, Yahoo's vice-president for search."

"Still, the growth of paid inclusion could tilt the search business toward deep-pocketed companies. . .. Jumbo chains like Marriott International (MAR ) Inc. or Hilton Hotels (HLT ) Corp. are certainly better equipped to cover such costs than, say, a bed-and-breakfast."

"Just ask Rob Spooner. The 56-year-old runs a travel site called Online Highways with informational pages about various small towns throughout the U.S. Inktomi, a search engine that now belongs to Yahoo, contacted him late last year about becoming a paid-inclusion participant. The proposal: Spooner would pay 10 cents for every visitor Inktomi passed along. Spooner did the math, figured he would lose money on anything more than 3 cents a click, and declined the offer."

"Then things went downhill. Spooner's Web pages soon plunged in Inktomi's search rankings and disappeared from key sites like MSN, where Inktomi feeds its listings. After he demanded to know what happened, Spooner learned from Inktomi that his site contained editorial flaws that hurt his ranking. And he would have to become a paid-inclusion customer to learn what these flaws were. All this, while his pages remained well ranked on Google. 'I lost a quarter of my traffic,' says Spooner."

"And why not label the sponsored links? Many search companies and advertisers fret that marking them would scare the public away from relevant sites. Says Glenn McLaren, e-commerce manager at Friedrich Air Conditioning: 'Part of what makes it attractive is that it doesn't look like advertising.' The trouble is, if paid inclusions are hidden, readers could grow to dismiss Internet search as nothing but a pile of ads."

Let's hear it for Google! Boos to Yahoo! We want a web search to deliver relevant information. Ads should look like ads. And everybody already knows lots of unpaid mom-and-pop websites are in fact ads (like the bed-and-breakfast example). You want to rank high on Google? Start a blog and feed it every day with lots of content crammed with good juicy keywords (or update your regular website frequently with non-commercial content and links to other sites of interest).

Continued . . .

"Freedom ride" or "free ride"?

Christain Science Monitor reports: "Goal of new 'freedom ride': integrate illegal immigrants."

"Calling their journey the Immigrant Workers Freedom Ride (IWFR), some 900 travelers are crisscrossing the country in 18 buses advocating for reforms, including the controversial legalization of workers in the US illegally."

"The diverse crowd of riders - Mexicans and Bangladeshis, undocumented workers and longtime US citizens - is pushing for better conditions for legal as well as illegal immigrants. Their four-point agenda focuses on workplace policies, civil liberties, faster reunification of families, as well as official status for illegal workers."

Bizarrely, immigration law reform to allow more legal immigration is not on the agenda.

"It is unjust to maintain second-class status for people who in all other respects are Americans - in their commitment to work, to family, to their communities," says David Koff, an IWFR spokesman and a member of the Hotel Employees and Restaurant Employees International Union. "They are here and will continue to come, regardless of the law, because the economy needs more workers and the conditions in their home countries propel them to search for employment."

"Others, however, see the bus ride as a slap in the face to citizens and foreigners waiting in line to get here. 'What this really should be called is the free ride, because what they want is freedom from playing by the rules,' says David Ray, a spokesman for the Federation for American Immigration Reform in Washington. Immigrants here legally, he says, have as much recourse as any other workers who face abuses on the job."

"The problem with amnesties for the undocumented, Mr. Harrington says, is that flooding the bottom of the labor market brings down wages. During the recent economic slump, he says, the number of native-born workers dropped by 1.5 million, while the number of employed immigrants rose by 600,000."

I'm sorry. My parents are both (legal) immigrants, and they have made fine contributions to America (including me ;-) ). If you want to change the law to liberalize immigration quotas or make it easier to come in legally, that's fine. But to reward illegal behavior is never a good idea. And employers who enable such behavior by illegally employing immigrants should be punished with the full force of the law.

Continued . . .

UFCW Union strident despite "buyer's market" for labor

A very biased piece from Pulse of the Twin Cities - Locally Grown Alternative Newspaper reports on Borders Books UFCW-represented employees' rejection of a contract offer. Meanwhile, here in the river city (St. Louis), UFCW-represented employees of the three major grocery chains rejected a contract intended to help stave off Wal-Mart. Strike vote here next week.

I, for one, will enjoy crossing a picket line to buy my groceries at my neighborhood store. Wal-Mart and Sam's aren't nearly as conveniently located (yet), and I want to support my local store. Plus the contract offer seemed quite reasonable. Plus I generally don't care for strikes and strikers. Plus I can't fathom why, with all the bad 'jobless recovery" news I've been tracking here, anyone would want to cede their job to a permanent replacement.

Continued . . .

Pair of upbeat articles on employment of the disabled

More good original workplace reporting from the Christian Science Monitor.

Two articles, entitled "Gourmet food and a helping hand" and "Ready, willing, and working," profile employers successfully using physically and mentally "disabled" employees (I use the quotes because they've proven themselves not totally disabled, but quite capable of working, given proper support).

Check it out.

Continued . . .

Ruling on fiduciary duty in Enron case

CNN (Dow Jones) reports: "Court says Enron's Lay can be sued under U.S. pension law. Enron ruling could lead to more protections for workers' with employer stock in 401(k) plans.":

"[A] federal judge in Texas ruled Wednesday that former Enron Corp. Chairman Kenneth Lay and Northern Trust Corp., which administered Enron's 401(k), can be sued under federal pension law as fiduciaries in the Enron 401(k) plan."

"The wide-ranging, 329-page ruling . . . said Mr. Lay and Northern Trust -- along with others who oversaw Enron's retirement programs -- had a responsibility to ensure that the plans' investments were prudent, and that this responsibility extended to decisions about the use of Enron company stock in the retirement plan."

"The employee lawsuit, filed in the months after the energy-trading company's collapse, accused the company, Mr. Lay, other Enron executives, the retirement plans' administrators, Northern Trust and others of misleading company employees by encouraging -- or requiring -- them to hold Enron stock in their retirement accounts, when the stock price was artificially inflated."

"At the heart of the ruling is the question of who counts as a fiduciary for retirement plans and in what circumstances -- in other words, who has a duty to act in the best interests of plan participants, rather than their own or their company's best interest."

"Although the ruling could come as a surprise to some . . . , Boston University law professor Tamar Frankel says its broad terms aren't a departure from longstanding fiduciary law. Fundamentally, those with control over other people's money can expect to have a fiduciary duty to those people -- and the more power they have, the stronger the duty, Ms. Frankel said."

The ruling merely denied defense motions, and establishes no liability -- yet.

When the Enron scandal hit, unlike many who felt Lay would get away with all the money, I felt somehow the justice system would find a way to compensate the employee-victims. Hopefully, this decision goes far towards this end.

I'm concerned the opinion's described as so long and "wide-ranging," because to some extent this is a special case of fraudulent inflation of stock value combined with large benefit plan holdings of company stock, and should not be too far-reaching.

I'd hate to see it totally deter companies from offering their stock as part of benefit packages, because there are very good reasons for doing so. Employee ownership can be very good for morale and productivity, and provide a valuable retirement benefit at lower cost to the company than cash (ask the early-Microsoft millionaires) -- that is, if ("big if") the company's not run by crooks.

Continued . . .

Jobless claims up

CNN reports: "Jobless claims rise to 399,000 in latest week."

"Jobless claims rose last week, . . . back to near the 400,000 level that many economists believe is a benchmark for labor-market weakness."

"399,000 people filed for benefits in the week ended Sept. 27, compared with a revised reading of 386,000 in the prior week."

Continued . . .

New sex discrimination theory?

Another Harvard Business review piece, abstracted briefly here, with reprints available online: "Nice Girls Don't Ask" by Linda Babcock, Sara Laschever, Michele Gelfand, Deborah Small:

"Managers who pride themselves on giving employees what they request may be shortchanging women, simply because men ask for a lot more than women do. This can be costly for companies, and it requires management intervention."

Babcock and Laschever have a book on the subject: "Women Don't Ask: Negotiation and the Gender Divide," and a website with a blog and other goodies relating to the book as part of the site.

I really don't see giving men what they ask for -- and not giving women what they don't ask for -- as gender discrimination. But not meeting the needs of good female employees just because they are not articulated forcefully can lead to morale problems and turnover.

Another implication is the need to train women in negotiation if the job duties require it.

Unfortunately, the theory may reinforce a not-politically-correct gender stereotype, and it's certainly to the authors' credit that this does not prevent them from reporting their findings.

NOTE: I have not read either the full article or the book.

Continued . . .

What is success?

Harvard Business Review abstracts another interesting article here, with reprints available online: "The Harder They Fall," by Roderick M. Kramer.

"The past decade may well be remembered as the era of the high-flying, aggressive leader. . . . Then scandal set in, and the stars fell to earth."

"Roderick M. Kramer asks an important question: Why do so many leaders--not just in business, but also in politics, religion, and the media--display remarkable adeptness and ability while courting power, only to engage in even more remarkable bouts of folly once that power has been secured?"

"Kramer, who has spent most of his career researching how leaders get to the top, says that the systems through which we select our leaders force executives to sacrifice the attitudes and behaviors that are essential to their survival once they have reached the top. Society has learned to consider risk taking and rule breaking as markers of good leadership. As a result, leaders come to believe that normal limits don't apply to them and that they are entitled to any spoils they can seize."

"The leaders who do remain grounded exhibit five common psychological and behavioral habits: They simplify their lives, remaining humble and "awfully ordinary." They shine a light on their weaknesses instead of trying to cover them up. They float trial balloons to uncover the truth and prepare for the unexpected. They sweat the small stuff. And they reflect more, not less."

That might change what one looks for when interviewing for a key leadership position, don't you suppose? How often are interviewers impressed with the humble, ordinary candidates who readily admit weaknesses? Perhaps they should be, more so than with overwhelming confidence and swagger, provided other qualifications are there.

Continued . . .

Recovery still jobless

Reuters reports: "Industry Sheds Jobs Even as Output Rises."

"Many see [GDP] rising 5.0 percent or more in a big step-up from the second quarter's 3.3 percent growth pace."

"Yet all this growth has been unable to generate jobs. Nonfarm payrolls fell by a total of 142,000 in July and August and economists fear the September report could show another sizable drop."

"Planned layoffs at U.S. firms slipped only slightly in September, to 76,506 from 79,925 in August. That came on top of 872,080 job cuts so far this year."

"Jobs, or the lack of them, have become the hot topic for both markets and politicians, and the longer the labor market stays weak, the more chance there is that economic growth will slow again after the third quarter's spurt."

"So great is the concern over jobs that some analysts are starting to wonder if the Federal Reserve might not have to cut interest rates again -- a radical change in thinking for markets that have been far more concerned about when the first tightening might come."

Continued . . .

Follow-up on epilepsy as disability

The 7th Circuit’s decision yesterday in Sanglap v. LaSalle Bank, FSB, (7th Cir. 9/30/03) illustrates a situation where someone with epilepsy might come closer to proving disability than the case I commented on the other day.

This was an intentional infliction of emotional distress claim arising out of a bank’s decision to close the account of a longtime customer because he had suffered four epileptic seizures in the bank’s lobby.

While the act of banking is probably not a major life activity, one wonders how often he suffered seizures elsewhere and how it impacted other aspects of his life.

This case is also instructive on the importance of careful selection of legal theories and pleading.

Here the plaintiff won an $80,000 jury verdict, only to lose it on a post-trial motion and appeal, in part because his state law tort claim was preempted by the Illinois Human Rights Act. He should have claimed disability discrimination by a financial institution under that act.

Epilepsy, like mental illness, still bears special stigma. This suburban bank manager feared it would freak out his customers if this guy had more seizures in the bank. Would he close an account of a guy who had a non-fatal heart attack in the bank? Doubt it. A harmless schizophrenic who talked to himself? Maybe.

Continued . . .

Ford, Chrysler to cut more jobs

CNN reports: "Ford to cut 12,000 jobs, Chrysler 5,000."

"Fresh off the negotiating table, new labor agreements with the United Auto Workers will allow Detroit's Big Three automakers to eliminate as many as 50,000 jobs through a combination of buyouts and normal attrition during the next few years, industry analysts have said."

"Tuesday, Ford . . . told employees it plans to cut 3,000 salaried jobs by releasing 1,700 contract workers and eliminating 1,300 vacant jobs in a bid to slash costs by the end of the year."

Continued . . .

Chicago Teamsters garbage haulers strike

CNN reports: "Garbage haulers go on strike"

"The garbage haulers walked out just after midnight after negotiators failed to reach an agreement on a new contract that covers roughly 3,300 union members."

"The Chicagoland Refuse Haulers Association, which represents 16 of the largest waste removal companies in the region, declared a lockout and ended negotiations at 2:30 a.m."

A Refuse Haulers Association spokesman "said Tuesday that no contingency plan was in place, because 'it would be logistically impossible' for the association to continue service using supervisors and hired help."

Correct me if I'm wrong, but that doesn't seem real bright--locking out employees performing a vital public-service function without a contingency plan for getting the work done--and admitting that publicly. Guess who has all the leverage now?

Continued . . .