Some experts agreeing with my assessment of the General Dynamics age case

The ABA Journal e-report today has this by David L. Hudson Jr: "High court narrows age bias suits; Workers 40 and Older Can't Sue Other Older Employees, Justices Say"

Cleveland attorney Mark Biggerman, who argued the case for the employees, [said]: "The court disregarded the plain meaning of the statute, the one relevant piece of legislative history and the EEOC interpretation of the relevant provision. That is a heck of a lot to sweep aside."

"It was surprising that the court would focus so much on the history behind the ADEA when the language of the act appears to be unambiguous," says professor Lawrence Rosenthal of Northern Kentucky University’s Salmon P. Chase College of Law in Highland Heights. "In similar cases, the court simply looked at the language of the statute and concluded that if the statute prohibited discrimination because of a particular characteristic, then it did not matter whether the person claiming protection was in the class Congress initially meant to protect."

The reference is to cases concluding there may be reverse race discrimination claims (whites claiming discrimination because they are white) and same-sex sexual harassment claims.

The General Dynamics dissent mentions these cases, and the analogy is quite reasonable. The point is that regardless of which type of discrimination was more common and thus in the mind of Congress (as if it is ever of one mind!), our other discrimination laws have been read as promoting equality, not as favoring a protected class. The limitation of the ADEA to those 40-and-over makes such interpretation a bit tough, though the dissent attempts to explain it away.

Continued . . .

Off-topic post on gay marriage

More lunchtime reading in the St. Louis Post-Dispatch op-eds: "Who's really driving the wedge?" by Charles Krauthammer, says precisely what I've been thinking: that we are about to repeat the mistake of Roe v. Wade.

No, I don't think that mistake was legalizing abortion (nor am I strongly opposed to gay marriage). I think the mistake was bypassing the democratic process in doing so, and making the Constitution so elastic it is expandable to create rights that clearly would not have been included -- if they had even been thought of -- when the constitutional language was written. And that's basically one of the points Charles makes well.

Continued . . .

Thomas Friedman on outsourcing/offshoring to India

I've been collecting a number of articles on this topic, currently perhaps the top hot button employment-related topic. I still will post on the others (one of these days), but today's lunchtime reading in the St. Louis Post-Dispatch op-ed page has this excellent one by New York Times columnist Thomas Friedman: "What goes around comes around"

As good journalists often do, Friedman makes his points in favor of free trade with real-life examples. Writing from Bangalore, India, he discusses how American companies benefit directly from the economic growth in India, even though that growth involves loss of some American jobs.

One problem with his analysis is that many of the American products being exported to India, while profiting American-owned companies, and derived from intellectual property created here, are not manufactured here (or if they are, do not require the employment of large numbers of Americans).

Continued . . .

Grocery strike appears over, finally

CNN.Money (Reuters) reports: "Supermarket strike settled; Deal ends strike of nearly five months by 60,000 grocery workers at about 900 California stores."

Deal is tentative, subject to ratification. A vote could occur Friday or Saturday; interviewed employees are cautious in commenting until they see details.

"Strikes and lockouts are always a battle of last resort. The dispute was long and difficult. Many workers lost their homes. Company shareholders lost hundreds of millions of dollars. Shoppers lost the reliable service of their local grocery clerks. Everyone suffered," AFL-CIO official Art Pulaski said in a statement. . . .

Several industry executives and analysts said this week that the parties sought to reach a deal before the end of the week following persistent calls from major investors, including the largest U.S. public pension fund, The California Public Employee's Retirement System, or Calpers.

Analysts said the impasse . . . is estimated to have cost more than $1 billion in lost sales. Its duration is likely to make it much harder for the three chains to win back customers who defected to rival stores . . . .

Was it worth it? Who won?

Only time will tell. The stores must restore morale -- and maintain it under the potentially divisive two-tier wage scale which is likely part of the deal. They must become (or remain) competitive other than strictly on cost (e.g., perceived quality; service; and value-added services like deli, flowers, delivery), and more efficient in labor utilization (e.g., stepped-up use of self-checkout). Then maybe they can make back their losses in the long term.

As to employees who lost homes, etc., if they feel they got a good deal on health care, that's quite valuable these days; perhaps they'll better appreciate what they have in this regard.

Continued . . .

I've been prepping for an exciting seminar on electronic evidence

This has been a very low-billable-hours week as I've been diligently preparing my materials for an upcoming seminar Friday, March 12, 2004 at the University of Missouri, Kansas City.

The seminar is entitled Electronic Evidence Discovery Seminar; "Recovering the Digital Smoking Gun." Here's the agenda.

I'm speaking last, on "Spy vs. Spy: Applying Electronic Discovery, Computer Forensics, and the Federal Computer Fraud and Abuse Act to the Theft of Trade Secrets -- A Case Study."

I got invited because I had a great experience last year working with the program's Chairperson, John R. Mallery, of Clarence M. Kelley and Associates, Inc. on a case involving these issues. John found me my electronic smoking gun email, and boy did it make a difference.

The text of the Federal Computer Fraud and Abuse Act is here. It has potentially broad application to employee espionage of the type which often occurs when employees quit to work for a competitor.

Continued . . .

Some tips on performance reviews

From the perspective of defending employment termination and discrimination cases, I have become aware of the importance of employee evaluations. Done poorly, they can be great ammo for a plaintiff's lawyer:

Q. Now Mr. Manager, you testified that during the last year of his employment my client was the subject of numerous customer complaints, right?

A.Yessir.

Q.And is this the evaluation of my client you completed two months before you fired him?

A. Well yes . . .

Q. Mr. Manager, sir, can you show me where it says you had a problem with customer complaints?

A. Well . . . uh . . . it doesn't exactly say that.

Q. Exactly? Does it say anything even remotely like that?

A. No.

Of course, if done well, evaluations can make rather than break a defense case by showing the employee had full knowledge of what was expected and where he was seen falling short, with adequate opportunity to improve. And better yet, they might keep an employer away from the courthouse altogether, by causing a deficient employee to either shape up or ship out (voluntarily).

A few months ago, I ran across this article: "Helpful Hints for Staff Performance Reviews," by Linda Oligschlaeger, Membership Services Director at The Missouri Bar. Although directed at law firm managers, it has some good general pointers, including this list of "Performance Review Pitfalls":

1. Halo-effect. On occasion one characteristic about a person, either positive or negative, strongly influences all other attitudes about that person. For example, a physically attractive employee may not be held accountable for errors with as much scrutiny as a person who is not as attractive.

2. Leniency-strictness effect. Some evaluators have a tendency to give all high marks, while others tend to evaluate the same performance as average or less than average. In fact, some employees can subtly bully evaluators into all high marks every year, which can defeat the purpose of the evaluations — especially when others are rated more fairly. Rarely will an employee receive all outstanding ratings consistently year after year – no one is quite that perfect. It’s important that all evaluators use the same standards for their evaluations to maintain consistency . . . .

3. Contrast effect. The evaluation of one employee’s performance may be influenced by the performance of the others being evaluated. For example, an employee might receive a more than favorable review when following a poor performer or a less than favorable evaluation when followed by the shinning star of the office.

4. Recency effect. Recent events tend to have an usually strong influence on performance evaluations. An employee’s good work for the entire year might be overshadowed by one negative incident that happened prior to the review.

5. Central tendency effect. Some evaluators give all average ratings to avoid taking a risk to identify marginal or outstanding performance. Again, this defeats the entire process.

Continued . . .

"Pee-phobia" (paruresis) and drug testing

Interesting guest column in the Post-Dispatch I just read at lunchtime: "Fairness vs. phobias"

By Steven Soifer, Executive Director of the International Paruresis Association, the article discusses persons who are psychologically unable to give a urine sample during a random drug test.

Sound crazy? Yes. But it happens more frequently than people realize, and not because the employee is a drug user.

[T]he culprit is an anxiety disorder known as paruresis, or shy bladder syndrome, which prevents sufferers from physically being able to produce urine samples on demand. According to a Harvard study, some 17 million men, women and children in the United States alone suffer from this social phobia.

After the fear of public speaking, it is the second most common social phobia. While symptoms range from mild to severe, many fall in the middle, when stress and anxiety make it virtually impossible to urinate when others are present.

This is exactly the situation during drug testing, and it is not recognized as a legitimate reason for the inability to produce a sample. In fact, the failure to produce a sample is automatically considered a positive for drug use, despite lack of any evidence to prove this allegation. . . .

A saner approach is available. The federal Substance Abuse and Mental Health Services Administration plans to revise the federal regulations concerning drug testing to allow alternative sampling such as hair and saliva to be used for drug testing of federal employees. Once adopted, these new federal regulations will spread through private industry. Some Fortune 500 companies already use alternative drug testing methods. . . .

Along with impotence and incontinence, paruresis is among the more embarrassing and humiliating health issues, one that sufferers are reluctant to discuss. Many capable people remain unemployed, underemployed or in low-level jobs because of drug testing issues, causing an uncounted amount of lost productivity as well as personal hardship.

This is an issue that companies should be prepared to address when they engage in drug testing.

Certainly, if alternative means of testing are equally accurate and no more expensive, they should be considered.

At a minimum, employers should be aware this is potentially a legitimate reason for "failure to cooperate" with urinalysis drug testing.

Obviously, the difficulty is it can also be a very convenient excuse for drug users seeking to avoid detection. I would suggest waiting for an employee to raise the issue and then requiring a professional medical opinion before allowing the employee to comply with mandatory testing through alternative means of testing.

More information on the condition here and here.

Continued . . .

Jobless claims up slightly, but there is some good news too

CNN/Money reports: "Jobless claims edge up to 350,000 in latest week"

New unemployment claims were reported at 350,000, compared with 344,000 the prior week.

The four-week moving average is up slightly as well, to 354,750 from 352,000 the prior week.

The good news?

Continued claims -- those of people out of work for a week or more -- fell to 3.1 million for the week ended Feb. 14, the latest available, from a revised 3.16 million the prior week.

Isn't this continued claims figure the more significant one? That's what I think of when I think of the national unemployment picture.

There is an arguably better measure of the suffering caused by unemployment, which is rarely publicized. This is the duration of unemployment, and the one-week break point provides a very incomplete picture.

Look here for longitudinal statistics on duration of unemployment.

This picture is not particularly encouraging. But it reflects the long-term effects of previous higher rates of job loss and therefore is a lagging indicator. Nonetheless, politically it is the longer-term unemployed (and their friends and family) to whom economic jingoism will have the greatest appeal -- and there are plenty of 'em.

Continued . . .

Racism alive and well in Missouri

CNN reports from St. Louis: "Firing of teacher over racial comment upheld"

A Missouri appeals court upheld the firing of a teacher who told her eighth-grade class she opposed interracial marriage and believed such couples should be "fixed" to prevent them from having children. . . .

Her attorneys argued her reported classroom comments were constitutionally protected free speech. The appellate court rejected that Tuesday, declaring that the First Amendment right applied only to public concerns -- not Loeffelman's discussing a private matter that was not part of the lesson plan.

Loeffelman, the ruling suggested, also should have understood her comments could be harmful to the pupils, who included two biracial students. . . .

Maurice Watson, the school district's attorney, said Loeffelman's comments "can only be described as egregious" and "reflect a perverse, private point of view that had no legal protection in school."

Loeffelman, 53, told students in October 2002 that she was "totally against" interracial marriage, that interracial couples shouldn't have children because they often get teased, and that mixed-race children were "racially confused."

Parents and students said Loeffelman also said mixed-race students came to school dirty and are never accepted by society.

Crystal City, where this occurred, is less than a one-hour drive from my neighborhood, but apparently worlds apart, if this teacher's attitude reflects that of even a portion of her neighbors, which it may. Think about people like this teacher next time you are tempted to think racism is a thing of the past.

Continued . . .

Statement to EEOC admissible on plaintiff’s credibility

In Weyers v. Lear Operations Corp., No. 02-3732 (8th Cir. 2/24/04), an age discrimination case, the Eighth Circuit held that was prejudicial error to preclude the employer from impeaching the plaintiff with her prior sworn statements to the EEOC. Inconsistencies between these statements and her trial testimony were directly relevant to her credibility.

Two points:

First, if you are litigating a discrimination case, obtain the agency file.

Often it is not very interesting, but not infrequently it contains this type of useful material. If there are significant inconsistencies, and they're brought out in deposition, the case may never go to trial (with the employer winning on summary judgment or obtaining a favorable settlement).

Second, whichever side you are on, get the facts right at the agency investigation stage so that you can avoid such embarrassing and harmful inconsistencies when additional or different facts emerge later.

If you are an employer, this may mean hiring an attorney to respond to an EEOC charge, even though the agency's finding will not be dispositive and therefore the agency process may seem unimportant.

Continued . . .

Supreme Court age discrimination decision: right result, wrong reasoning

Yesterday, the Supreme court decided General Dynamics Land Systems, Inc. v. Cline, holding that the Age Discrimination in Employment Act of 1967 (ADEA) [link to statutory text] does not prohibit age discrimination against younger employees (preferences for older employees), even between employees within the protected 40-or-over age group.

For quickie news story on the case, see CNN/Money (Reuters): "Top court rejects age bias suit; Supreme Court rules law barring age discrimination doesn't allow for suits by workers in their 40s who claim older workers have been treated more favorably":

By a 6-3 vote, the high court handed a victory to a General Dynamics Corp. subsidiary which argued the law does not provide for such reverse discrimination lawsuits.

Justice David Souter wrote in the court's majority opinion that the law's text, its purpose, its history and its relationship to other laws show it was not meant to stop an employer from favoring an older employee over a younger one. . . .

An agreement in force until mid-1997 provided full health benefits to all employees who retired with 30 years of seniority. The company and union then negotiated a new collective bargaining agreement which offered retiree health benefits only to those at least 50 years old on July 1, 1997.

About 200 present or former employees in their 40s sued and said the limitation amounted to illegal age discrimination. . . .

The court in the opinion by Souter rejected that interpretation.

Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy dissented.

"This should have been an easy case," Thomas wrote, adding that the law's plain language mandates that younger workers should be able to sue for discrimination that favors older workers.

He said the law "clearly prohibits discrimination because of an individual's age, whether the individual is too old or too young."

See also "High Court Backs Benefits Based on Age; Younger Workers' Bias Claim Rejected"
by Kirstin Downey, Washington Post Staff Writer, adding some significant points.

First, a quick summary of the conflict between majority and dissent:

In the opinion for the court, . . . Souter wrote that "it is beyond reasonable doubt" that the intention of the [ADEA] . . . was to protect older workers, not younger ones -- even if the older workers were treated better and the younger workers were 40 or older. He cited congressional testimony from the 1960s that he said showed the law's framers were concerned mainly about diminishing job opportunities for older workers, and that age discrimination is "naturally understood to refer to discrimination against the older."

[D]issenting [with Kennedy], Thomas, a former chairman of the EEOC, wrote that the "plain language of the ADEA clearly allows for suits brought by the relatively young when discriminated against in favor of the relatively old." . . . . In a separate dissent, . . . Scalia wrote that the EEOC, the agency charged with enforcing discrimination laws, had found it "unlawful" to discriminate by "giving preference because of age between individuals 40 and over."

Next, some important practical implications:

The Post article says the "decision [was] applauded by corporate groups as necessary to preserve some early retirement plans," which may provide enhanced benefits to older workers.

This article also suggests that because this decision makes it clear that it is not unlawful discrimination to selectively curtail retiree health benefits as General Dynamics did, thus avoiding disturbance to the expectations of those closest to retirement, more employers may follow this course to help stem the tremendous cost of retiree health benefits. This will worsen America's health insurance crisis.

The amicus curiae (friend of the court) briefing list reveals some strange bedfellows, and the results reached by the court's "liberals" and "conservatives" in a certain sense reveal a role reversal.

The Dept. of Justice backed the EEOC in favor of a more expansive -- if "plain language" -- reading. The dissent adopted this more expansive interpretation which is "liberal" in that it would have allowed many more age discrimination claims.

On the other side, the liberal Justices used freewheeling statutory interpretation (see below), but conservatively narrowed the range of possible age claims. Their position was supported by the AFL-CIO, UAW, NEA, Teamsters Health and Welfare Fund, who found themselves on the same side of a major employment issue with the following employer- and business-advocacy groups: Equal Employment Advisory Council, HR Policy Association, Chamber of Commerce of the United States, American Benefits Council, and Erisa Industry Committee. Curiously, the AARP filed a brief "in Support of Neither Party."

I found it somewhat troubling that the Supreme Court majority followed a meandering logical path, rather than a disciplined statutory construction paradigm.

I probably would have reached the same result, but would have started by expressly addressing whether and how the discrimination clause itself (prohibiting "discriminat[ion] ... because of [an] individual's age,") is ambiguous. If so, I would have asked whether the ambiguity could be clarified by reference to other language of the statute or a comparison to language used in other federal employment laws -- all before one word about legislative history.

Instead, the Court gives these first two inquiries short shrift in the following two sentences before plunging headlong into legislative history -- the statutory interpretation tool of last resort:

In the abstract, the phrase is open to an argument for a broader construction, since reference to "age" carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress's interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.

The next eight paragraphs sandwich one brief paragraph about another, highly relevant, section of the statute -- the introductory statements of purpose and findings -- between extensive discussion of much less relevant, if not improper, considerations such as: a preliminary study by the Secretary of Labor, a presidential message to Congress, testimony at House and Senate hearings, "common facts," "common experience," a "commonplace conception of American society in recent decades," and what is "naturally understood."

Finally, the Court comes to the most important, if not dispositive, textual cue -- the limitation of the protected class to those 40 and up:

This same, idiomatic sense of the statutory phrase is confirmed by the statute's restriction of the protected class to those 40 and above. If Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40. . . . Thus, the 40-year threshold makes sense as identifying a class requiring protection against preference for their juniors, not as defining a class that might be threatened by favoritism toward seniors.

Even here, this analysis is interspersed with unnecessary discussion of common sense experience, a quote from a House report, and a statement of the Secretary of Labor in a Senate hearing (last time I checked, he/she doesn't vote on legislation) [I deleted these portions].

Then the Court finally looks at judicial interpretations, as if this were an afterthought. It cites three Supreme court opinions, none of which is particularly on point or persuasive. In concluding, it makes the following not insignificant point:

The Courts of Appeals and the District Courts have read the law the same way, and prior to this case have enjoyed virtually unanimous accord in understanding the ADEA to forbid only discrimination preferring young to old. . . . The very strength of this consensus is enough to rule out any serious claim of ambiguity, and congressional silence after years of judicial interpretation supports adherence to the traditional view.

Unfortunately, this potentially valid application of a statutory interpretation principle is weakened greatly because: 1) only two Court of Appeals decisions are cited, and the Court took the case because a third one disagreed; 2) congressional inaction is much more impressive if it follows a Supreme Court opinion directly on point, which it didn't; and 3) it is improperly treated as much less significant than comments of the Secretary of labor, common sense, etc.

The Court not only relies on improper considerations, it also illustrates precisely the trouble with legislative history -- that it discloses the thinking of too many different people throughout a lengthy deliberative and politically adversarial process and thus is often rife with inconsistencies and conflicting positions. The majority says:

The record of congressional action reports a colloquy on the Senate floor between two of the legislators most active in pushing for the ADEA, Senators Javits and Yarborough. Senator Javits began the exchange by raising a concern mentioned by Senator Dominick, that "the bill might not forbid discrimination between two persons each of whom would be between the ages of 40 and 65." . . . Senator Javits then gave his own view that, "if two individuals ages 52 and 42 apply for the same job, and the employer selected the man aged 42 solely ... because he is younger than the man 52, then he will have violated the act," and asked Senator Yarborough for his opinion. . . . Senator Yarborough answered that "[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went."

There's no indication Javits disagreed. So here we have two of the most important proponents of the ADEA agreeing on this point (and with the position taken by the dissent). Read for yourself the Court's effort to dodge the bullet on this one (Section III.B.). I'm not persuaded.

It goes on, but it's getting late. Suffice it to say that I agree with the majority result because the restriction to a 40-and-up protected class is indicative of a concern only with discrimination against older persons in favor of younger persons, but find that the Thomas-Kennedy dissent is a textbook model of clear statutory analysis in comparison to the majority's meandering:

The starting point for [the] interpretation of a statute is always its language, . . . and "courts must presume that a legislature says in a statute what it means and means in a statute what it says there . . . . Thus, rather than looking through the historical background of the . . . ADEA, I would instead start with the text . . . itself, and if the words of [the] statute are unambiguous, my judicial inquiry [would be] complete. . . .
. . .
The parties do identify a possible ambiguity. . . .
. . .
This plain reading of the ADEA is bolstered by the interpretation of the agency charged with administering the statute.

Continued . . .

Judge expects attorneys to write well if they want top dollar

Law.com has this article by Shannon P. Duffy from The Legal Intelligencer: "Judge Slashes Lawyer's Rate for Typos, Careless Writing"

Finding that a Philadelphia attorney's courtroom work was "smooth" and "artful" in winning a $430,000 verdict in a civil rights suit, but his written work was "careless" and full of typos, a federal magistrate judge ruled his court-awarded fees should be paid at two rates -- $300 an hour for courtroom work, but only $150 an hour for written work on the pleadings.

The judge said his "complete lack of care in his written product shows disrespect for the court. His errors, not just typographical, caused the court a considerable amount of work." He said he recognized the case was complicated, but some of the writing in the amended complaint was "nearly unintelligible."

"When defense lawyers complained that the typographical errors . . . were 'epidemic,' the attorney's response included several more typos":

"As for there being typos, yes there have been typos, but these errors have not detracted from the arguments or results, and the rule in this case was a victory for [the plaintiff]. Further, had the Defendants not tired [sic] to paper Plaintiff's counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions by the Defendants, thus they should not case [sic] stones" [sic inserted by the judge]

In his most recent letter to the court, [the judge] noted, [the attorney] misspelled the judge's name . . . .

But [the judge] said he was impressed by [the attorney's] work in the courtroom.

"As for the time [he] spent in court, considering the quality of his written work, the court was impressed with the transformation. [He] was well prepared, his witnesses were prepped, and his case proceeded quite artfully and smoothly."

Moral [not morale] of the story?

First, do not rely on spellcheck (but also don't skip it). It is necessary but hardly sufficient. Note that each of the [sic]'s from the judge follows a perfectly well-spelled word that just had the misfortune of not being the correct word.

Second, an attorney's writing is very important and worth the expenditure of significant time -- and, if you're the client, money. In federal court here in St. Louis, most motions are decided without any oral presentation, so the written product is everything.

Too many lawyers have the trial skills and the ambition to be courtroom heroes, but lack the ability or desire to perfect their writing, or the willingness to spend the time on such "grunt work' as doing research and writing briefs. It gets delegated down to less experienced lawyers, who may or may not get the job done well and efficiently.

Continued . . .

Grocery strike news

Reuters reports: "Union, Grocers Contract Talks Continue"

Union and supermarket company officials met for their 10th straight day of contract talks on Friday to hammer out a settlement to end a five-month-long Southern California labor dispute . . . .

The latest discussions began on Feb. 11 following a failure of numerous other attempts to resolve the impasse. . . .

Mark Husson, an analyst at Merrill Lynch, said he reckons that "we could now be only days away from an announcement," possibly outlining a settlement.

He said in a research note the continuation of the discussions suggested that "employees and shareholders have metaphorically locked the various parties in a room and won't let them out without a deal."

Sounds promising. It can't go on forever.

My prediction: it will settle and both sides will claim victory, but the stores will come out having made less concessions than the union.

However, it will not have been worth it for either side, except perhaps in the very long term for the stores, as they are reported to have lost more than $1 billion in sales due to the strike.

Wonder how much employees lost in wages in the aggregate?

Continued . . .

Latest jobless claims report

Findlaw (Reuters) reports: "Jobless Claims Drop on Better Weather"

First-time unemployment claims dropped 24,000 to 344,000 last week, from a revised 368,000 the previous week.

The four-week moving average, "seen as a more reliable gauge of the pace of layoffs because it smoothes short-term swings," was up slightly to 352,000 from 351,750.

Weather -- bad the previous week, better last week -- was thought responsible for much of the recent changes.

Longer term unemployment is not looking good: number still on the benefit rolls after an initial week "rose by a sharp 106,000 to 3.19 million in the Feb. 7 week, the latest for which figures are available. Still, so-called continued claims are well below the elevated levels they hit in the wake of the 2001 recession."

Continued . . .

Blogging solo writes about blogs

Law.com carries this story by Carolyn Elefant from Legal Times: "It's a Blog World After All"

Carolyn is the author of the My Shingle blawg for solos, which I highly recommend, even for non-solos. One tidbit from her article that struck a chord was:

[O]nce a blog starts attracting an audience -- and it will -- a blogger is then essentially shamed into keeping posts current at least for the sake of the blog's little band of readers. . . .

That's not to say that blogs aren't time-consuming -- solos I've consulted estimate that it takes between 20 minutes and an hour every other day to keep up a blog.

Yes, I'm spending that kind of time -- and enjoying every minute of it. And yes, sometimes it is the fear of disappointing my growing band of readers that keeps me going -- that "shame" factor.

So what? So if you're coming back or following this blawg on Daily Whirl or a news aggregator, give me some feedback (see e-mail link at left). What do you like? Not like? Use the commenting feature if you agree/disagree with me. And I'll keep going . . . I promise.

Continued . . .

Politicians and jobs

Washigton Post (Jonathan Weisman) reports: "Democrats Can't Get Firm Grip on Jobs Issue"

Democratic presidential candidates have made the loss of U.S. jobs to international competition the centerpiece of their campaigns, but even some of the candidates' economic advisers acknowledge that remedies offered -- such as closing tax loopholes on overseas income and offering tax breaks for domestic hiring -- would probably do little to stop the bleeding. . . .

The movement of jobs to low-wage countries . . . has been driven by powerful forces of economic globalization that may be beyond a politician's control . . . . The two leading Democratic candidates have fallen back largely on one economic factor that Washington does control: the tax code.

Kerry . . . and . . . Edwards . . . both have said that tax law rewards corporate expansion overseas. And both would cut taxes for domestic manufacturing and offer temporary tax credits for hiring manufacturing workers in the United States. . . .

Many economists and some business officials agree that companies are reaping tax benefits from overseas expansion. Citigroup executives told industry analysts last month that the banking firm lowered its effective tax rate from 31.3 percent to 30.6 percent last quarter, boosting income by $52 million, by putting more money into overseas operations.

The decline from a 33.7 percent tax rate in 2002 "primarily represented benefits for not providing U.S. income taxes on the earnings of certain foreign subsidiaries that are indefinitely invested," a company document says.

In addition to an incentive for shipping away jobs, this may be a significant loss of revenue to the US Treasury, contributing to the deficit, though perhaps but a drop in the huge bucket (sea?) of red ink.

But virtually no one would say that taxes are a primary -- or even a significant -- factor in the movement of as many as 300,000 white-collar jobs and many more manufacturing jobs abroad in the past several years. No matter how sweet the tax incentive is to expand in India, for instance, it could not be more enticing than lowering a software developer's pay from $60 to $6 an hour. . . .

Kerry and Edwards have embraced pending congressional legislation to create a lower tax bracket for domestic manufacturing operations. Kerry would give employers tax credits to offset payroll taxes for new hires. Edwards would renew tax incentives for business investment in impoverished areas, but target them at regions hit hardest by international job losses.

Both candidates have promised programs to finance alternative energy development and to lower the cost of employer-sponsored health care, programs they say would make U.S.-based industries more internationally competitive.

Kerry has also said government contracts, when possible, should go to U.S.-based businesses, and that call-center phone operators should at least be required to identify what country they are in.

["Good afternoon. Thank you for calling All-American Software Company. This is Indira in India. How may I help you today?"]

[Kerry] has called for a government study into outsourcing, its scope and costs, and has backed a law requiring companies to keep records of what jobs were sent abroad and why. . . .

Roger C. Altman, chairman of the Wall Street investment firm Evercore and a Kerry economic adviser, said some jobs for which the wage differences are vast will not be saved. But, he said, an integrated response focused on taxes and lowering business costs will save "certain jobs that are susceptible to a competitive response."

Meanwhile, back at the ranch-White House, reports the Washington Post (Dana Milbank): "Bush Backs Off Job Forecast; Economic Advisers Project 2.6 Million More Positions This Year"

A Feb. 9 report by the White House Council of Economic Advisers predicted that payrolls would grow to an average of 132.7 million in 2004 from 130.1 million in 2003, an exceptionally rapid employment gain for an economy that has shed 2.3 million jobs during Bush's tenure. Facing the prospect that Democrats would make a campaign issue of Bush's failure to meet his own projections, Bush and top administration officials declined to endorse the 2.6 million jobs forecast.

Asked Wednesday if he agreed with the prediction, Bush would not endorse the figure, saying, "I think the economy is growing, and I think it's going to get stronger." . . .

The annual CEA report has had difficulty in the past with its forecasts for jobs growth. Previous reports predicted the economy would add 1.7 million to 3 million new jobs in 2003, but in fact the nation lost 53,000 jobs.

Federal Reserve Chairman Alan Greenspan said Tuesday that the 2.6 million jobs forecast was "a credible forecast" if productivity gains decrease this year. But the Fed issued a report Tuesday saying rapid productivity gains are "likely to be sustained" this year.

Productivity growth, then, which ought to be a blessing (it certainly is on the "micro" level of the individual firm that can thereby become more profitable), may be the curse that is one of the downfalls of the Bush administration.

This paradox is beautifully illustrated and discussed in "Ramifications of Increased Productivity: A Paradox In Approaching Paradise," a chapter of "Ethical and Philosophical Foundations of Economics" an online book by Richard Garlikov, an interesting freelance online writer and "Philosophical Counselor."

Some of his thoughts:

Yet what we are talking about here is simply greater productivity, which ought to be a boon to civilization, since greater productivity always lets there be either an increase in goods and services available or an increase in leisure (which is essentially a decrease in required labor). The challenge is to find a reasonable and fair way under the circumstances to deal economically with increases in labor productivity (and perhaps concomitantly in those situations where labor decreases in productivity through reductions in available resources or skilled labor, etc.). The mechanism needs to be fair simply because morality prima facie requires fairness where possible. And the mechanism needs to be reasonable, as does any economic mechanism, in at least the sense that it does not cause any unnecessary loss of incentive to achieve and thus cause an overall decrease in productivity. . . .

Diminishing leisure and adding work to an economy seems to be easier and less problematic from a fairness perspective than does diminishing work and adding leisure. Yet the various points along the way going in either direction might be the same. It is just generally socially easier to distribute work acceptably than to distribute leisure acceptably.

And one of the places where this is most apparently problematic now is in the kinds of cases above where machines and other mass production techniques can add leisure by doing work for people and where an increased supply of labor (such as in developing countries) holds the potential for allowing everyone to do less work overall and thus have more leisure. But we don't have a good automatic economic or social mechanism in place for adding workers in order to increase leisure for all, instead of having the new workers simply replace the previous workers, thus forcing more "leisure" on them than they can afford to have. . . .

Apart from some clearly unfair ways of assigning new, increased labor (as in drafting only economically disadvantaged people, "blue-collar" workers, or people not in college, in times of war to do the labor of fighting), as we increase the amount of work that needs to be done, we seem to have less social economic difficulty than when we decrease it. That is because we have few mechanisms (such as reduction of hours in the standard work week, decreasing the age of retirement, or increasing paid vacation time) for distributing newfound substantial (potential) amounts of leisure in ways that are and that seem both fair and not damaging to the work ethic. As technology and globalization brings the potential and the promise of more abundance, more leisure, and less potential need for work for everyone, it is increasingly important to bring into the economy mechanisms which will distribute that abundance and leisure fairly, productively, and reasonably.

And that, my friends, is the true essence of the "problem" we face that we see manifested as a frightening loss of jobs rather than a pleasurable increase in leisure (and overall societal material wealth). Don't expect the politicians to discuss it in these terms, though.

Continued . . .

Why careful drafting is important, if costly

I imagine that time spent by a lawyer carefully drafting and redrafting language of a contract, brief, or other document can seem wasteful at times to a client who must foot the bill. I know I am one of those who spends much time trying to get it just right.

Well, over at the Corp Law Blog, Mike O'Sullivan has this post that illustrates the reason we can be so nitpicky (because we fear other lawyers will be equally so): "Fun With Clause Identifiers: They're (a) Sensible, (b) Precise and (c) So Cool!"

Based on this post in professorbainbridge.com, it uses the example of this seemingly common, yet ambiguous, "for-cause" termination clause in an employment contract:

Cause" shall be defined as Employee’s conviction, by a court of competent jurisdiction, of a felony, theft of Company property, or a crime of moral turpitude, or gross negligence in the performance of Employee’s duties.

What ambiguity? Read the post.

I would re-write it this way:

Cause" shall be defined as: (a) Employee’s conviction, by a court of competent jurisdiction, of a felony or a crime of moral turpitude; (b) theft of Company property; and/or (c) gross negligence in the performance of Employee’s duties

What a difference a little punctuation can make!

If this seems silly, you have definitely not dealt with one of the worst kind of "lawyers" -- union members and their agents (OK, I'll throw in employer representatives for good measure) interpreting collective bargaining agreements.

It is incredible how many disputes over cba contract language I've seen that involve roughly this degree of ambiguity, have an equally common-sense answer, yet lead to arbitration.

Probably in part because union contracts aren't drafted at one sitting, but grow organically through periodic renegotiations, each involving days of negotiations and tons of horse-trading compromises, and when disputes arise years later nobody even remembers why a particular clause was written as it was.

One of the less obvious ways unionization multiplies employer costs -- a zillion management decisions become matters of contract interpretation.

Continued . . .

List of state laws on use of arrest and conviction records

Workforce Management magazine's website has this useful list, including some links to state agencies: "State Laws on Employee Arrest and Conviction Records"

Bear in mind that this covers only state statutory rules, and there is also relevant case law on matters such as discriminatory impact and federal law such as the Fair Credit Reporting Act to be considered.

Continued . . .

The push for retraining, including for automated manufacturing jobs; example of one such job

Ron Scherer and Kimberly Chase write for the Christian Science Monitor: "Can retraining offset rush of jobs offshore? As more workers get displaced, everyone from Bush to colleges is pushing programs to hone new skills."

Discusses role of community colleges, and refers to Workforce Alliance, a group describing itself as "a national coalition of local leaders advocating for federal policies that invest in the skills of America's workers . . . ."

Also discusses "Integrated Systems Technology program that trains students for skilled manufacturing jobs." This program's largest area of concentration is manufacturing. "While unskilled labor is tending to move overseas to cut costs, skilled workers are still needed for automated production."

This tied in nicely with an article by Jerri Stroud in Today's St. Louis Post-Dispatch business section: "Furnace manager feels the heat year round in her job".

This story is part of an ongoing series of profiles entitled "At Work in St. Louis." Today's story describes a young woman just a few years out of a bachelor's program in ceramic engineering who expected to be working in research or product development, but instead wound up as a 'batch and furnace manager" for a 24-7 plant producing beer bottles for that famous St. Louis brewery.

The plant, just south of St. Louis, is owned by the container division of a French conglomerate, Saint-Gobain Group

Here's a nifty little schematic of the operation, and here's their description of the type of employment opportunities in this industry.

Interesting sort of globalization in reverse here: here's a French company owning a plant that does work that really makes sense to do here in Missouri, just down I-55 from the brewery, minimizing shipping costs to virtually nothing.

And labor costs are not a major issue, as it's so highly automated. Of course, I suspect this means the plant doesn't have that many employees.

But this is a fine example of the type of manufacturing work we have a good shot at keeping (and growing?) in the US, and one requiring a high level of training and dedication.

Continued . . .

Sex magazine, the First Amendment, and sexual harassment at Harvard

From Reuters: "Harvard University Approves Student Sex Magazine"

Harvard University's newest magazine may be called the "H Bomb" but its topic is more anatomical than atomic.

The sex magazine will debut this spring, complete with nude photographs and erotic articles, and is the brainchild of two female undergraduates who say the journal will be a literary and art magazine about sex. . . .

Harvard's Committee on College Life approved the magazine, arguing that no matter how uncomfortable the explicit pictures may make some people, the students have a right to free speech. Lawyers at the 368-year-old Ivy League university agreed.

From the Boston Globe today (by Jenna Russell): "Harvard warns sex magazine against pornography"

After granting official recognition to its first student sex magazine, H Bomb, Harvard University said the magazine would keep its approval only if it steered clear of pornographic material.

"The proposal to publish a magazine called H-Bomb was approved by the Committee on College Life based on the understanding that it would not include material that would be considered pornographic," said a statement from Harvard College released Thursday night. "The Committee will be reviewing the proposal with the students to make sure that there is a clear understanding that the organization will not be involved in the dissemination of pornographic material." . . .

Matthew Mahan, president of the Harvard Undergraduate Council, defended the proposal and said the student council is likely to provide the magazine with money.

"I think most students feel it is a legitimate publication with a legitimate mission, namely to raise the level of campus dialogue surrounding issues of sex and sexuality at Harvard," he wrote in an e-mail. "The two women who are organizing this seem to be very aware that there is a line that could and should not be crossed."

The administration has the right to come up with standards for publications, he said, but needs to articulate its guidelines clearly to all students before beginning any review of the magazine.

"I don't anticipate censorship, and if there was an overbearing presence from the administrators, I would not be happy about that," he wrote.

Now, just to make it interesting, here's a portion of the University's garden-variety harassment policy:

Although it is not possible to list all types of conduct that, if unwelcome, might under certain circumstances constitute sexual harassment, the following are some examples . . .

Displaying sexually suggestive objects, pictures, magazines, or cartoons.

So it sounds like students have a First Amendment right to publish a sexually suggestive magazine, but employees don't have a corresponding right to "display" it (which could include being seen reading it -- or looking at the pictures)?

Continued . . .

Modified duty for workers suffering compensable injuries

In a comment to my recent post, Workers Comp Insider promises to devote "a number of blog postings at Workers Comp Insider to laying out the steps to a create win/win modified duty program."

My thoughts are that such a program can not only reduce lost time costs, but also reduce the chance of resignation or termination. These are the events most likely to lead to litigation. Care must be taken, however to comply with the somewhat conflicting demands of FMLA and ADA (and possibly state workers comp law).

The FMLA regs provide, at 29 CFR 825.702 :

(d)(1) If FMLA entitles an employee to leave, an employer may not, in lieu of FMLA leave entitlement, require an employee to take a job with a reasonable accommodation. However, ADA may require that an employer offer an employee the opportunity to take such a position. An employer may not change the essential functions of the job in order to deny FMLA leave. . . .

(2) An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer). At some point the health care provider providing medical care
pursuant to the workers' compensation injury may certify the employee is able to return to work in a "light duty" position. If the employer offers such a position, the employee is permitted but not required to accept the position . . . . As a result, the employee may no longer qualify for payments from the workers' compensation benefit plan, but the employee is entitled to continue on unpaid FMLA leave either until the employee is able to return to the same or equivalent job the employee left or until the 12-week FMLA leave entitlement is exhausted. See Sec. 825.207(d)(2). If the employee returning from the workers' compensation injury is a qualified individual with a disability, he or she will have rights under the ADA
[which may include additional leave as a reasonable accommodation].

My take on this is that modified duty may be a reasonable accomodation under the ADA, and therefore may have to be offered; but if declined by an FMLA-qualifying employee, it cannot be mandated.

I'm eager to hear what Workers Comp Insider has to say, and will link to their post(s) on the subject when I learn of them.

Continued . . .

Where the jobs are going; what jobs will be left; and what it all means for America

Herein we combine in one massive post a whole collection of links I've been saving up on offshoring of jobs, labor market trends, and at the end a fascinating piece on what it all means for middle class America.

First, start with the recent flap over Council of Economic Advisers Chairman Gregory Mankiw's comments about offshoring tech jobs:

MSNBC reports: "White House job comments touch a nerve; Economist stumbles into political minefield over outsourcing"

"Outsourcing is a growing phenomenon, but it's something that we should realize is probably a plus for the economy in the long run," Mankiw told reporters in a briefing.

Virtually all mainstream economists agree with this position, and Federal Reserve Chairman Alan Greenspan expressed similar views in congressional testimony this week, although they were carefully couched in his enigmatic "Fedspeak."

Mankiw's plain talk, by contrast, triggered howls of outrage and even calls for his resignation, which were dismissed as "laughable" by a White House spokesman. Democratic presidential front-runner John Kerry pounced on the gaffe, saying the administration already had presided over a loss of 3 million jobs (actually closer to 2.3 million), "and now they want to export more of our jobs overseas."

Commerce Secretary Don Evans defended Mankiw's comment, calling it an endorsement of "free and open trade." But President Bush, well aware that the upcoming election could hinge on jobs, carefully distanced himself from the idea that he is in favor of U.S. jobs going to China.

"There are still some people looking for work because of the recession," Bush said in a speech to high school students in Harrisburg, Pa [emphasized language is hereby nominated for understatement of the year]. "There are people looking for work because jobs have gone overseas. And we need to act in this country. We need to act to make sure there are more jobs at home, and people are more likely to retain a job."

For more on political fallout on both sides of the aisle, see this on Findlaw (Reuters): "Republican Leaders Rebuke Bush Aide Over Jobs"

Surprisingly perhaps, the Washington Post came to the aid of Mr. Mankiw today: "Mr. Mankiw Is Right," stating:

[O]n Monday, N. Gregory Mankiw, the head of the president's Council of Economic Advisers, was brave enough to speak the truth about the shift of service jobs to places such as India. The upshot? He's assailed from both sides of the aisle in Congress. . . .

Mr. Mankiw's offense was to say that the normal rules of trade apply to services as well as manufacturing. Just as it makes sense to buy cell phones from Finland if they are cheap and excellent, it makes sense to buy call-center services or software programming from India if these are the best on the market. Not only is Mr. Mankiw right, but to argue otherwise is elitist and offensive. It would suggest that it's okay for blue-collar workers to lose jobs to foreign competition but not okay for white-collar folk to face the same competitive pressure. Mr. Kerry voted in favor of the North American Free Trade Agreement, which boosted competition in manufactured products. How can he justify the opposite position on trade in services?

People may feel that the new "offshoring" of service jobs is different because it appears unlimited. Until now, the loss of U.S. manufacturing jobs ascribed to trade has been offset by gains in service jobs, which demand some proximity to the customer and have therefore not been tradable. Now that fiber-optic cable links the United States to cheap, educated, English-speaking labor in India and elsewhere, old assumptions about what's tradable have to be rethought. The dislocation will create real pain for displaced workers, as Mr. Mankiw acknowledged; programs to retrain them should be expanded. But the U.S. economy will not run out of jobs as a result of some service activities being tradable. After all, technology has been eliminating back-office administrative jobs for a decade, yet unemployment sank to record lows during the 1990s. Why believe that the next phase of U.S. cost cutting will produce a different outcome? And is there nothing to be welcomed about workers in poor countries getting decent jobs?

Indeed. "Workers in poor countries getting decent jobs" is perhaps the last, best chance for world peace and prosperity (a goal I must admit seems more like a pipe dream these days than at any other time in my 46 years, including the Vietnam years).

Mr. Mankiw is not entirely alone, once you get past the political pandering and simplistic sloganeering of this election year. Check this out from USA Today tech columnist Kevin Mavey just days before Mankiw's comments hit the press with such a bang: Unpopular argument: "Sending tech jobs abroad is good"

Behind closed doors, many U.S. technology executives will say something that could get them flayed if repeated in public: Sending computer programming jobs to India and China is good for America.
Not just good for business, they believe, but good for everybody -- part of a process that will raise the standard of living in the USA and make us more secure in the world. . . .

That belief is based on a widely accepted theory -- the theory of comparative advantage [link is to in-depth explanation of theory] -- that goes back to David Ricardo, a brilliant 19th-century economist . . . .

Let's say the USA is really good at two different things, software programming and creating innovative technology. And let's say India is also good at both. Because Indians don't get paid nearly as much as Americans, India can do each job at a far lower cost compared with the USA.

A big fear is that if trade is free and open, the USA would lose both those pieces of its economy, because lower costs win. Then our standard of living would fall, while the Indians could increasingly buy Porsches and plasma TVs.

But that fear, Ricardo would say, is misplaced.

Why? India's schools churn out loads of programmers, but the country has little venture capital and other infrastructure to help drive innovation. So even though India can do both for less than we can, inside India, the cost of doing programming is relatively little while the cost of starting companies is relatively high. . . .

In the USA, we pay programmers very well. We also have a well-oiled, technology-creating innovation machine. Inside our country, it has become relatively expensive to our society to do programming; and relatively cheap to innovate in technology. . . .

Now here's where it gets funky: Ricardo would say that the USA should innovate in technology and stop programming, and India should do the programming and stop innovating. If we each concentrate on our "most best" and then trade, more of both get produced for less ? the very essence of increased productivity.

Of course, the "most bests" change over time, and that changes the equation. The genius of U.S. capitalism is that it continues to create "most bests" that are of higher value than everybody else's "most bests." Next up will be industries like biotech and nanotech. . . .

Real life gets a lot more complicated than that, but in general the theory has been proved over hundreds of years. In the 1980s, the USA lost tens of thousands of auto and steel jobs to Japan, but because of comparative advantage, we gained those jobs and more in fields that were new "most bests," like high-tech and financial services. And though some people back then predicted we were going to become Japan's servants, and congressmen symbolically bashed a Toshiba boom box on the Capitol lawn, in the end the standard of living in Japan and the USA rocketed.

Ricardo's point shows up on a more practical level, too. If a computer company outsources programming and saves 30% in costs, some of that savings results in lower computer prices -- a good thing for consumers. At the same time, the company keeps some of the savings, giving it higher profits.

That means it can hire more people. It can also invest in new products, which might result in the company doing even better, and hiring more -- some, perhaps, in other countries, but some in the USA. And if profits go up, the stock price probably goes up, making millions of stockholders wealthier. . . .

At the same time, U.S. workers benefit when the standard of living rises in India or China or anywhere in the world. "Those people are all going to buy cars, cell phones, PCs, espresso machines, mutual funds, iPods, Nikes, Polo cologne and on and on," Andreessen says. Many of those products will be made by U.S. companies.

"We can benefit if they become more like us," Romer says.

One last note: The more this goes on, the less likely the United States will have enemies. If India's economy is booming because U.S. companies outsource there, India pretty quickly becomes our friend. Same with China and elsewhere. We'd have a lot easier time with North Korea's Kim Jong Il if a few American telemarketers could move their call centers to Pyongyang.

Not every tech executive buys all this. Intel (INTC) Chairman Andy Grove argues that the USA is in danger of losing key technology capabilities and needs to mount a counterattack. That doesn't mean he wants to close off trade. Basically, Grove is saying we need to once again become "most best" at software programming, and keep those jobs here. . . .

Competing economic theories argue that much has changed -- like cheap broadband Internet connections that make a computer in India seem like it's next door -- and Ricardo's theories no longer apply.

Ricardo isn't an easy man to believe in. But so far -- 180 years after his death -- he still seems right.

Fast Company magazine has a somewhat more equivocal piece: "Offshore Storm: The Global Razor's Edge":

The defining political issue for America in the next decade has arrived now, courtesy of India, China, and any number of aspiring developing nations. That issue is offshore outsourcing--not of blue-collar factory guys, but of well-paid knowledge workers. It is a question that will get traction in November's elections. It will only grow bigger and more divisive. . . .

Researchers at the Fisher Center for Real Estate and Urban Economics at the University of California, Berkeley, estimate that as many as 14 million service workers, or 11% of the nation's total jobs, are vulnerable to offshoring. . . .

The reality is, offshore outsourcing is inevitable--and for the economy, that's not such a bad thing. Nowhere is this clearer than in the place you would least expect: Silicon Valley, the cradle of America's technology economy.

Sure, hourly workers and engineers in the Valley are jittery; offshoring is a touchstone issue for a nascent union drive at IBM's plants there. But listen to the serious money--the entrepreneurs and venture capitalists who make things happen in the Valley. They understand, first, that this isn't about a race to the bottom. Rather, to compete in a climate of weak capital markets, their companies have to be run as efficiently as possible. . . .

"The reality is that you are also creating a very large market opportunity for U.S. firms," says Arjun Gupta of TeleSoft Partners. "When consumers in India get higher wages from these new jobs, the first thing they do is spend it on consumer products, and they want American products." Things like washing machines, clothes dryers, cars, and microwaves. [These may be made by American companies, and invented, designed, and perfected here, but they ain't being made here anymore, are they? Unless newly-wealthy Indians hanker after Ford F-150's, not BMW's] "The second-order effect of this will more than offset the short-term loss of jobs," Gupta says. . . .

Is there a risk? Of course there is. Think back to the 1970s, when American companies unloaded the manufacturing of consumer electronics products to factories in Japan. Today, those Japanese companies--Sony, Matsushita, Sanyo--dominate that industry, even though the United States remains the largest consumer market for TVs, stereos, and other gadgets. . . .

What's your pleasure: survival or survival? The Valley's answer: "You go wherever you need to go to get the job done in the best and cheapest way," . . . "Here we are, we've been trying to export capitalism and democracy, it's been one of our national goals, and now that we've succeeded at it, we're awed and even afraid of it! That is the greatest irony of all this."

There's a nice discussion section on this Fast Company page, with some very insightful comments from a variety of angles, including the viewpoints of this Indian techie and this one. The latter writer says accurately and bitingly about the American consumer:

The people writing their agonised comments are using the computers made abroad. They are steadfastly refusing to use Made In America but 50% more expensive computers. They are wearing Tommy [Hilfiger] Tee shirts made in India and writing their arrogant and hypocritical arguments. They refuse to buy Fruit of the Loom clothes made in US. They are the ones who are making Walmart [the] largest organization in the world even though they know that Walmart is into outsourcing in a big way.

Sad, but 100% true. Not only that, but my personal opinion is that Fruit of the Loom underwear made in U.S. is a better value than many competitors made abroad, perhaps even on a par with designer-label stuff, without the designer name. You want to pay $10-$20 for 1 pr. of underwear to have some designer's name on your waistband, instead of 2 pr. for $5.00, be my guest (but please keep your shirt tucked in and your pants pulled up so I don't have to see it!) But I believe you're not only throwing away your money, you're also helping throw American workers onto the streets.

Offshoring is not always proving to be as cheap and easy a solution as is hoped (and feared). In
Workforce Management magazine, Andy Meisler writes: "Think Globally, Act Rationally":

This excellent in-depth story starts with coverage of a conference in Houston in which "promoters of offshoring to India touted the benefits to a rapt audience. But there were some sobering asides amid the hoopla, such as news of a 50 percent failure rate and savings that aren't so spectacular."

It goes on to discuss the topic from various angles, including an exploration of what causes the failures ("executives at parent companies, whether intentionally or not, sabotage the offshoring project from the beginning").

It explains the error of simply "equating the differential between U.S. and offshore salaries, the so-called 'labor arbitrage,' with expected savings from offshoring." "What it takes, veterans say, is a willingness to 'settle' for savings in the 30 to 40 percent range, realistically predict the advantages and drawbacks as they apply to a particular business, and then methodically plan the operation before committing serious money and labor to it."

The article advises that "Where the offshore solution is advantageous is with rule-based decision making," referring to "fairly repeatable and automated tasks where adherence to guidelines is clear-cut, like payroll and ledger functions."

"[F]ar more time must be devoted to managing and monitoring offshore employees."

"American firms that send foreign-born executives back to their home countries have an immediate advantage. When they apply their American salaries back there, they enjoy a tremendous standard of living, and they're perfectly equipped to address language and cultural issues."

After discussing domestic fears and criticism, the article concludes:

Be ready for America to rebound. . . . "Unions kept wages high as manufacturing companies rushed overseas in the 1970s. Software workers are not represented by unions. That means that wages for developers and other workers will drift down to a more palatable level. At the same time, the tech staffing crunch in India is driving wages up. When the delta between the two becomes smaller, software companies must decide whether it makes sense to begin growing technical staff in the United States again. Could America's highly skilled developers become offshore staff for overseas vendors and software developers?

What jobs will be left when all the 'good" ones are offshored? Business Week has this by Peter Coy: "The Jobs of Tomorrow: A New Low?"

[A]ccording to a forecast released Feb. 11 by the federal Bureau of Labor Statistics (BLS), a large share of new jobs will be in occupations that don't require a lot of education and pay below average. The fastest growth of all will be for medical assistants, who require nothing more than "moderate on-the-job training." . . .

And of the top 10 occupations with the highest percentage expected growth in jobs, only four will require as much as a bachelor's degree.

It's the same pattern when you look at the 10 occupations that will add the greatest number of jobs. This list includes some that aren't growing rapidly in percentage terms, such as cashier, waiter/waitress, janitor, and retail salesperson. . . .

Only two of the occupations on the top-10 list of total job growth require at least a bachelor's degree (namely, post-secondary teacher and "general and operations manager"). If you didn't get any education past high school and aren't planning to, the abundance of jobs that don't require a college education is good news. Better to have a job than not. But don't expect to be well-compensated for your labors. . . .

American workers with less education are being battered by two powerful forces. Computerization and automation are wiping out jobs in both manufacturing and office work. Offshoring is sending other jobs abroad.

At first glance, health-care jobs look like a happy exception. They're relatively insulated from those two global forces. A computer can't bathe a hospital patient in Milwaukee. Neither can an orderly in China or India. . . .

Still, just because health-care jobs are growing doesn't mean they're lucrative. Physicians, who do make good money, don't appear on the top-10 percentage-growth list. Instead, you find jobs like home health aides and physical-therapist aides, both of which require "short on-the-job training.". . .

The other field that dominates the top-10 growth list is info tech. Here, the educational requirements tend to be higher, and the story is more positive. Many of these jobs actually benefit [from] computerization and automation because they're involved with those trends. Three of the fastest-growing jobs on the BLS list are "network systems and data communications analyst" and two kinds of software engineer. All three require at least a bachelor's degree.

The BLS doesn't seem appear to suggest that info-tech jobs will all leak offshore to India or elsewhere. Some will, of course. But American info techies can thrive if they're better trained, stay abreast of the latest developments in their fields -- and exploit knowledge of local customers and business processes that foreign competitors can't match. . . .

Of course, the BLS may be understating the educational requirements of jobs -- and underestimating the value the jobs provide and the pay they can command. For instance, customer-service positions are considered dead-enders. But that could change if companies begin to realize that keeping good relationships with customers is vital.

Here's the entire BLS news release ("BLS RELEASES 2002-12 EMPLOYMENT PROJECTIONS,") complete with tables galore.

Meanwhile, the quality of our workforce is assailed in this article By Al Lewis of The Denver Post (published in St. Louis Post Dispatch): "Survey says most U.S. workers are slackers"

If you have a job, you are probably a slacker.

That's according to a recent Gallup poll showing that 71 percent of U.S. workers are "not engaged" in their work.

At best, these folks are clock-watchers and break-takers. At worst, they mock their bosses and undermine the companies where they work, said Curt Coffman, who works for the Gallup Organization.

Coffman, 44, has been studying employee behavior for 20 years, helping Gallup survey more than 1 million workers annually. His astonishingly high slacker count is based on detailed quarterly surveys of 1,000 to 1,200 employees over the last 2 1/2 years.

"The longer employees stay with a company, the more disengaged they become." . . .

Most employees do their best work in their first six months. They start with the best of intentions, but before long they engage in useless tasks. . . .

Coffman is enumerating the ways disgruntled employees can sabotage employers in a book he's writing called "Customer Disservice." His Gallup polls put 17 percent of the work force into the category, "actively disengaged." These folks are way beyond collecting a paycheck for a job badly done.

One woman who worked at an optometrist center told Coffman she made every customer aware of a not-so-widely distributed 50 percent discount coupon for eyeglasses. "This was a perfectly legal thing to do and it just killed revenues," Coffman said.

Employees working at call centers told Coffman they deliberately provoked customers to get them off the phone quickly. Some even admitted they drove customers away because they hated their employer.

Coffman believes the bottom 20 percent of many large organizations should simply be fired. . . .

Coffman blames the rest of the dysfunction on managers, who should also be fired.

"Frankly, I don't think executives care that much about employees right now," said Coffman. And that lack of compassion is swiftly returned as employees discover the art of work avoidance. . . .

Geez, so what about that tremendous leap in productivity? You mean it would be that much more if the slackers put their nose to the grindstone? Then unemployment would really take off, wouldn't it?

And now, for the grand finale, a truly long-term perspective by Michael Lind in the Atlantic: "Are We Still a Middle-Class Nation?"

America . . . is not simply the land of political liberty. It has always also been an economic paradise for the middle class -- at least until now. . . .

[T]he American middle class has migrated from sector to sector over the past two centuries. The "fat and frolicsome" yeoman farmers of Crevecoeur and Jefferson became the well-paid factory workers of William McKinley and Henry Ford, and then moved to the suburbs to become white-collar "organization men" (or, less frequently, women) after World War II. Over the years the social prestige of various economic sectors rose as the middle-class center of gravity passed through them. In medieval England "clown" and "villain" were words for the farmer who later became the symbol of middle-class rural America. In the eighteenth century yeoman farmers and aristocrats alike despised the "greasy mechanic," who by the early twentieth century had been promoted to middle-class factory worker. In the fiction of Victorian Britain and Gilded Age America the office worker was a miserable, stunted figure?Scrooge's assistant Bob Cratchit, or Bartleby the scrivener. But after World War II the cringing, bleary-eyed clerk became the confident professional who left his suburban home armed with a briefcase -- Ward Cleaver, of Leave It to Beaver.

To most of us, the transition from farmer to industrial worker to service worker -- sometimes within three generations of one family -- appears in retrospect to have been inevitable, like some geological process. Indeed, many conservatives and libertarians seem to believe that a mass middle class is an inevitable by-product of capitalism. The truth is that each of America's successive middle classes has been artificially created by government-sponsored social engineering -- a fact that is profoundly important for us to admit as we think about the future of middle-class America.

There could never have been a mass agricultural middle class in the United States without vast quantities of cheap farmland, divided up into small farms. . . . [under] the Homestead Act . . . [the first American middle class]

The story was similar for the second American middle class, made up of prosperous urban industrial workers. From Abraham Lincoln to Herbert Hoover, American politics was dominated by a bargain between capitalists and workers; high tariffs on imports served the interests of both, by protecting goods from foreign competition. In addition, the dominant industrial labor force successfully lobbied the government to protect it from competition with other groups. . . . Today nostalgic conservatives attribute the prosperity of the 1920s to free enterprise. In reality the market was rigged. . . .

Whereas the second American middle class was founded on high wages for workers in the industrial sector, the third American middle class was founded on the supplementation of wage income by government benefits that collectively constituted a "social wage." The social wage included not only private-sector benefits encouraged by the tax code, such as employer-provided health insurance, but also subsidies such as the home-mortgage-interest deduction and government entitlements such as Social Security and Medicare (which freed many middle-class families from the bankrupting burden of caring for elderly parents), the GI Bill for higher education, and student loans. . . .

By the beginning of the twenty-first century, however, economic changes were threatening the third American middle class. In the 1970s an increasing number of U.S. corporations started to transfer production jobs and certain service jobs to low-wage workers abroad. . . .

Nevertheless, thanks to technologically driven increases in productivity, life has steadily gotten better for the majority of Americans. Advances in manufacturing and automation have slashed the prices of consumer appliances such as televisions and personal computers. At the same time, however, this kind of productivity growth threatens the middle class in three ways: by raising the costs of certain labor-intensive services necessary for a middle-class lifestyle; by changing the occupational structure; and by increasing inequality. . . .

In the absence of some system of private or public redistribution, then, there is no guarantee that rising national productivity will spontaneously and inevitably produce rising incomes and wealth for most Americans, rather than just windfalls for the fortunate few. . . .

[T]he productivity gains in heavily automated, capital-intensive sectors such as manufacturing, agriculture, banking, and other routine services have gone almost entirely to the investors who own the machines and the software, not to the workers who remain, and certainly not to the workers displaced into other sectors. Such an outcome would be likely even if all CEOs and wealthy investors were generous and public-spirited.

This is where economics turns into politics. It is doubtful that in any society with universal suffrage the majority is going to sit on the sidelines and watch, generation after generation, while a handful of investors and corporate managers reap almost all the benefits of technological and economic progress. . . .

If we reject both a new feudalism (under which most Americans provide personal services for the rich few) and a regime of protectionism and immigration restriction (which would benefit some workers at the expense of others), then some system of redistribution will be necessary to ensure that the middle-class majority benefits from long-term productivity growth. This can take two forms: redistributing income and encouraging the widespread ownership of income-producing assets. . . .

Universal capitalism," the idea that everyone should own income-producing financial assets, was originally championed by Thomas Paine, in the eighteenth century, and variants of the idea have been proposed in more recent years by Louis Kelso, Mortimer Adler, Jeffrey Gates, and Bruce Ackerman. Today about half of American households, and roughly 70 percent of registered voters, own stock through pension funds and similar vehicles. But money set aside for retirement does no good during one's working life. . . .

[I]t is possible to imagine a future in which middle-class Americans would receive part of the returns on their investments during their working lives (a small part at first, but more with each generation), which they would be free to save or to spend without any restrictions. Of course, a nation that confiscated private financial wealth and redistributed it among its citizens would wreck its economy and send not only capital but also capitalists fleeing across its borders. Thus any plausible program of universal capitalism must start small, by planting seeds capable of growing along with the economy over time.

For example, one can imagine a means-tested program of private, regulated investment accounts in which the government matched the contributions of low-income workers. The seed money might come from spending cuts elsewhere, or from new taxes. Alternatively, citizens could all begin receiving modest amounts of money from the sale or lease of the airwaves and other public assets. In this way, even though most new middle-class jobs would not contribute to productivity growth in the way that farm and factory labor did in the past, universal capitalism could ensure that the fourth American middle class, like its predecessors, would be able to share directly in the long-term growth of the nation's economy.

This may seem a radical change. But only in recent generations have Americans begun to receive most of their income in the form of wages. The yeoman farmer didn't rely on wages. And only in the twentieth century did the New Deal add the social wage to the market wage. In the course of the twenty-first century what may be called the "capital wage" could be added to these, so that middle-class Americans -- not merely an affluent minority -- might derive income from three sources rather than just two.

In their own ways, with methods appropriate to their own times, Thomas Jefferson, Abraham Lincoln, Franklin Roosevelt, and their allies provided the institutional frameworks that permitted successive versions of middle-class America to grow and flourish. Their success set a high standard for the leaders of today. Every presidential candidate claims to want to help middle-class Americans. The challenge, though, is not to repair the current American middle class but to create a new one.

Very interesting. A bit neo-Marxist, perhaps (all the proletariat becoming bourgeois by appropriating ownership of the means of production) , or is it hyper-capitalist (every man and woman a capitalist through universal investment)? And who is more likely to lead us this way: liberal Democrats -- because it fits their traditionally redistributionist approach to inequality, or Republicans, because it's so darn -- well -- capitalistic?

And now, exhausted by this massive post (I hope someone found something of interest here), it's off to bed. Yawn. . .

Continued . . .

Fired for hitting, Mr. Hitt got fired up about age discrimination, filed a charge and sued, but was KO'd after 3 rounds

The oh-so-aptly named William Hitt, in Hitt v. Harsco Corp., No. 03-2332 (8th Cir. , 1/30/04), got in an altercation at work with his son-in-law, who had been refusing to allow him any contact with his grandson. He was fired, as was the son-in-law, pursuant to a rule against "aggressing or becoming involved in fighting" (emphasis mine).

I like this rule, and the fact they both were fired. Absent exceptional circumstances meeting a strict legal definition of self-defense, IMHO the best policy on fighting (whether dealing with one's children, students, or employees) is to avoid getting sucked into the question of "who started it."

This rule clearly expresses that "starting it" ("aggressing") is not essential to a violation; it is sufficient to become "involved in fighting" (including by fighting back, other than truly in self-defense). It takes two to tangle, and the best policy, as Kenny Rogers said, is to "walk away from trouble if you can."

Anyway, after hitting his son-in law (who kicked him in return) and being fired, the 65-year-old Mr. Hitt got fired up about the fact that his foreman had said: "Old man, you are too old to be fighting" and that he had on other occasions been referred to as "old man" by the foreman and supervisor. He filed an age discrimination charge with the EEOC, which found he was terminated because of the fight, not because of his age (Round One).

Undaunted, he filed a lawsuit in district court, only to be dismissed on summary judgment (Round Two).

Stubbornly, he appealed to the Eighth Circuit, where he again lost (Round Three).

The Eighth Circuit addressed three arguments worth discussing here: 1) there was a genuine issue of fact as to whether he was actually fighting (he claimed he was simply kicked by the son-in-law and did nothing himself that could be characterized as fighting); 2) he was disciplined more harshly than younger employees who engaged in similar conduct; and 3) the "old man" remarks supported an inference of age discrimination.

The court rejected the first argument because "[t]he key question in a discrimination case like this one is not whether Hitt was truly fighting, but whether the employer really believed that he was fighting, such that the termination was based on a non-discriminatory reason" (i.e., that belief, even if it was mistaken)(emphasis in original). It was undisputed that eyewitnesses reported that Mr. Hitt threatened force against the son-in-law and then threw a punch at him; even if they were wrong, the employer reasonably relied on them.

Of course it is desirable to be able to prove a legitimate nondiscriminatory reason was based on an accurate assessment of the facts, especially at trial where this is likely to be expected by the jury. But for summary judgment purposes, this type of "reasonable belief" argument can really save the day (provided the belief was truly reasonable), by sidestepping a potential issue of fact requiring trial.

The court quickly disposed of the second argument because the evidence did not support it -- while perhaps the employer's treatment of fighting situations was not entirely consistent, the variations did not correlate with age. The son-in-law, who was only 34, had also been terminated for fighting; one of the employees who allegedly was treated more favorably under similar circumstances was age 51; and a 35-year-old employee had also been terminated for fighting.

Finally, the court was unimpressed by the alleged discriminatory remarks because they were made by persons other than the decision maker. The incident had been independently investigated by the regional business director, who interviewed the eyewitnesses, not by the allegedly biased foreman or supervisor who made the remarks. The decision was then made based on the results of this investigation by the Director of Industrial Relations, who had no knowledge of the identities of the employees or their ages when he made the decision.

On this last point, this employer, like Lockheed, followed an excellent practice for decisionmaking that allows disavowal of stupid biased remarks that low-level supervision may let slip (or that may be plausibly fabricated). (It's not just disavowal, such a procedure prevents actual bias from contaminating decisionmaking.)

Continued . . .

Workers Comp Insider weblog comments on my English-only post; writes good post on treatment of back pain

Workers Comp Insider adds to the safety angle on non-English speakers in the workplace in this post:"Mandatory English at the workplace?"

However, when the safety issue with non-English-speaking workers is addressed solely as a training issue, as it is in some of the articles linked from that post, there may be a tendency to focus exclusively on bilingual, multi-cultural training, which can avoid facing the need for improved ongoing communication on the job (for which bilingualism is typically not an adequate long-term solution).

Workers Comp Insider also has this interesting post: "A new prescription for back pain"

The conclusion:

[T]he employer’s best tool for fostering an active (but not necessarily pain free) recovery [is] [m]odified duty. Once we recognize that the vast majority of back injuries resolve themselves in a few months, with little or no treatment required, the need for proactive employers to help injured employees through the process – and the pain – becomes paramount. By providing modified duty, we give injured employees a reason for getting up in the morning and a place to go. We give them meaningful tasks, which help take their minds off the pain. Above all, we help them maintain their identities as productive workers. This is by far the most effective and the least expensive approach to lower back injuries.

From the employment lawyer perspective, I have certainly seen back injury situations wind up in litigation as costly disabilty discrimination, FMLA violation, and/or workers comp retaliation claims.

There's no easy one-size-fits-all solution; but it's an issue to pay close attention to. While the workers comp people typically like modified duty, as it reduces workers comp liability, there are some countervailing reasons for employers to be careful about when and how it is offered.

Which is not to say the recommendation in this post is necessarily a bad one, just that all angles of a particular situation need to be carefully examined by the employer and counsel, not just the impact on workers comp liability and on the employee's recovery.

Continued . . .

Immigration bill and English language

CNN's recent story on the proposed immigration bill includes this:

"In order to earn permanent status, undocumented workers would have to pay a fine and have lived in the United States for at least five years prior to the introduction of the legislation. They also would have to have worked in the United States for at least four years.

And they would have to pass security checks, pay U.S. taxes and demonstrate a knowledge of English. "

So an English competency requirement may become part of federal immigration law, as it should, and employers should be free to take reasonable steps to encourage English competency and usage (which, as I said, does not mean dictatorial, punitive, zero-tolerance policies).

Continued . . .

English-only policies and the melting pot (not)

Becoming aware of hot topics and trends is one benefit of the flood of employment-related news sources that deluges my inbox and RSS newsreader/news aggregator (I use Amphetadesk). By the time I've seen three or more stories on the same topic, I figure something's going on that I better blog about.

So recently I noticed and collected a number of items in a short period of time about English-only policies, qualifying this as a hot-button topic.

First, the basics, from HR Matters E-Tips, a free e-newsletter published by Personnel Policy Service, Inc. (subscribe here):

Today's growing immigrant population challenges employers nationwide to develop language and communications policies that effectively serve everyone's needs. Some employers answer this new challenge by requiring all workers to speak English. They maintain that a common workplace language will facilitate good communications and promote safety and efficiency.

However, if applied too broadly, these rules may violate Title VII of the Civil Rights Act (Title VII). Further, some employee advocates maintain such rules single out non-English speaking workers for different treatment and force them to suppress their ethnic backgrounds. . . .

As a general rule, you may require employees to have a certain level of English proficiency and to speak in a manner that can be understood. The . . . EEOC and courts have tended to uphold English-only rules if they have a business-related purpose and do not apply to employee break periods.

Examples of business-related reasons include safety concerns (such as employees working on a production line or with hazardous chemicals) and customer and vendor communications. However, these rules, unless implemented properly, can lead to national origin discrimination prohibited under Title VII.

The EEOC takes the position that English-only rules may hinder employment opportunities since they can prevent some employees from speaking their strong>primary language, or the language they speak most comfortably. Therefore, when investigating national origin discrimination claims, the EEOC closely looks at English-only rules and will presume they violate Title VII. . . . [emphasis added to highlight different issues: primary language and national origin are not one and the same thing.

The EEOC is serious about enforcement, too. Recently, a nationwide chain of hair salons agreed to pay $240,000 in damages to six Hispanic hair stylists. The agreement settled the EEOC's claim that the employer discriminated against the employees by requiring them to speak only English at all times. (See EEOC v. Regis Corporation, No. 99 C 8270 (N.D. Ill.) . . . The salon company also agreed to rescind its policy unless it could establish a business necessity for it. Damage settlements in other cases brought by the EEOC have ranged from $55,000 to $2.4 million.

And, several courts have agreed with the EEOC's position. For example, in EEOC v. Premier Operator Servs., Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000), the court determined that a policy that required employees always to speak English, except when helping non-English speaking customers, violated Title VII. Similarly, in EEOC v. Synchro-Start Prods., Inc., 29 F. Supp. 2d 911 (N.D. Ill. 1999), the court upheld the EEOC's claim that a rule, requiring English spoken at all times during working hours, had a disparate impact on employees with national origins from non-English speaking countries.

Here are the EEOC regulations on English-only rules.

Christian Science Monitor staff writer Stacy A. Teicher (who often writes excellent workplace-related stories) wrote this recently: "Where English only falls short; Companies scramble to cope with multiple languages in the workplace" Worth reading in full, highlights follow:

As companies hire from an ever more diverse labor pool, they reap the benefits of bilingualism, but they're also running into a Babel of problems. Already, a fifth of the nation's population speaks something other than English as their primary language (in some areas, it's two-fifths). Many of them have limited English proficiency that can lead to costly mistakes or low productivity. . . . And if some workers use a foreign language to mock others, morale can break down.

There's no quick fix. Some employers go to the expense of offering classes to improve workers' English. Others turn the tables and train supervisors in languages most often spoken by workers in their industry. What seems the simplest answer to some - an English-only policy - is tricky because conflicts between court rulings and EEOC guidelines leave a lot of gray areas. . . .

In a case settled recently for $1.5 million, Hispanic housekeepers at a casino were not allowed to speak Spanish. A janitor reported that he had to hide in closets to train new employees who understood only Spanish.

For bilingual people, suppressing the tendency to talk in both languages can be difficult. They may know enough English to get by in their jobs, but to talk about family or other topics with friends, their primary language offers them a much richer vocabulary. . . .

Some insist those complexities shouldn't keep employers from creating a language policy if they think it's good for business. "I speak four languages ... but a business has the right to establish rules for whatever reason - it could be safety, it could be social ... so other [workers] won't feel insulted," says Mauro E. Mujica, chairman of U.S. English in Washington, D.C. His organization promotes official-English policies, which exist in 27 states and apply only to government, not the private sector. But workplace policies, he says, should not extend to people's personal time.

The article also discusses a Navajo language case in which nearly 90 percent of a restaurant's employees are Navajo, though the owners are not. Employees were asked to sign a language policy due to complaints from customers and staff about rude comments being made in Navajo. The policy said: "The owner of this business can speak and understand only English. While the owner is paying you as an employee, you are required to use English at all times ... [except] when the customer cannot understand English. If you feel unable to comply with this requirement, you may find another job."

The EEOC is on the warpath (pun intended) on this Navajo case, which was still in litigation when the story was written. The defense is being funded through another English language lobby, ProEnglish, quoted as saying: "The EEOC has been very aggressive in trying to basically demonize the [employers] for trying to maintain a good work environment for their employees - one that [avoided] problems with the use of very foul language and also sexual harassment in the Navajo language."

Pro-English also contends "English- language policies do not equate with national-origin discrimination, because people can be from various countries and speak a range of languages that may or may not be native to that country."

Federal court rulings on English-only cases have sent mixed signals to businesses. Some courts have used logic similar to the EEOC's, but others have upheld businesses' right to require English during work time.

The most notable of those latter cases is Garcia v. Spun Steak. In 1993, the Ninth Circuit Court of Appeals upheld an English-only policy that was created after employees complained that co-workers were making racist comments in Spanish.

Because the Spanish-speakers also knew how to speak English, the court said, the policy did not create a hostile work environment for them. It also said the Civil Rights Act does not give employees a right to cultural expression.

Many lawyers still advise businesses to follow EEOC guidelines by keeping policies as narrow as possible. In California [of course] state lawmakers backed that up in 2002 by requiring employers to have an overriding business purpose for any English-language policy, and to give workers advance notice.

The article concludes with examples of more positive, proactive approaches to language barriers.

It profiles a company actively involved in teaching employees English, while not prohibiting foreign tongues. This carrot-not-stick approach seems to be working: the company "has seen fewer mistakes and faster work," and improved morale as the non-native speakers have "just come out of their shells."

Another company with a large Hispanic workforce taught supervisors Spanish. While workers are on their way to learning English, the company "want[s] to meet them halfway."

The third article on this subject was by Cindy Waxer in the January issue of Workforce Management magazine: "English-only Policies Can Translate into Problems for Employers"

Couple stats from her story, which largely parallels the Monitor story (I think hers came first):

Last year, the EEOC received 228 charges challenging English-only policies in the workplace. Ernest Haffner, an attorney adviser to the EEOC, expects that number to grow as more languages are spoken in the workplace. The U.S. Census Bureau reports that the number of Americans who speak English poorly or not at all has increased 65 percent since 1990 as immigration rates rise.

I have a strong view on this subject, colored both by my political beliefs and by my personal experience as an English-only child of multilingual immigrant parents. (These perspectives are perhaps inseparable.)

Start with the metaphor of America as the "melting pot." It has been a historical strength of this nation that we have assimilated vast quantities of immigrants from around the world, who have brought with them native cultures, religions, traditions, skills, and languages, and have all become English-speaking Americans (at least within one or two generations), not "hyphenated Americans." America has been vastly enriched by this in numerous ways, ranging from a stunning variety of ethnic food to cheap labor to great scientific, artistic, and intellectual contributions.

However, until the Hispanic revolution of the last few decades (largely involving illegal immigration), multilingualism was definitely not part of this phenomenon. To the contrary, English was a common thread holding us all together, and mastery of English a badge of honor for immigrants and their families.

My parents, native Hungarian speakers who came here as Holocaust-Iron Curtain refugees, felt teaching their children Hungarian was pointless. From birth, we learned only English, gradually becoming aware of -- and embarrassed by -- Mom and Dad's thick accents. They could never shake the non-native sound of their speech, but as well-educated avid readers they acquired English vocabularies and writing skills that would put 90% of today's native American college students to shame.

There was a darker side, however. Hungarian became their "secret language," used when they wished to discuss something without being understood by their children or others. This was -- and remains to this day -- a source of great irritation to me. And the strong assimilationist American culture surrounding me as I grew up made me feel awkward and isolated when I was aware of the many ways in which my family was not a "normal" American family.

So I sympathize greatly both with those who wish for greater tolerance of the many differences between the current generation of immigrants and native-born Americans and with those who feel that non-English speaking is a destructive force that divides and creates suspicion and hostility.

My bottom line is that English is an essential feature of the "melting pot," which in turn is an essential feature of a unified, if "diverse," America. I therefore favor English-as-official-language laws and policies, and educational policies which accommodate multilingualism only minimally. (Kids should not be permanently relegated to an inferior status educationally because of a language issue; but if they're forced to do so, young minds can catch up on a new language in relatively short order -- and they should be forced to do so, not coddled).

Clearly, English-only workplace policies are not direct national origin discrimination (disparate treatment), because if foreign-born individuals are not capable of satisfying the requirements, it's not because of their national origin, but because of their language abilities and efforts.

On the other hand, the EEOC is technically correct in applying a disparate impact analysis. In the aggregate, such policies clearly adversely impact non-native Americans. However, for policy reasons expressed above, I believe there should be relative leniency in finding business justification.

I would suggest that employers with significant numbers of English-challenged immigrant workers consider a mild, nonpunitive policy that strongly encourages assimilation and development of English skills, possibly including some assistance with the educational component. Something like this:

Our company recognizes that many of our foreign-born employees are still acquiring and improving their English-language skills. We believe these skills are very important for many reasons, including: safety; communication with coworkers, customers, and others; workforce unity and morale; and successful participation in the community outside the workplace. While employees may at times need to communicate in a native language, and employees will not be disciplined for speaking other languages where this does not interfere directly with vital business interests, we strongly encourage use of English whenever possible. We provide assistance of various kinds to employees seeking to improve their English skills. Such improvement, and increased use of English, is expected, and success in developing English skills, like success in all work-related skills and performance, will be taken into account for purposes of employment decisions, including pay increases and promotions.

Now I don't know what the EEOC or a court would say about this policy, and would certainly research it further before implementation. Nonetheless, it is what I think employers should be permitted to say, and should say.

As a larger point, the cases in which employers got in trouble for English-only were those in which they dug their heels in with an absolute, punitive, and authoritarian approach. IMHO, employers who show more flexibility and use the carrot along with the stick tend to do better in this (see examples in Monitor story) as in many other areas of HR and employment law.

Continued . . .

More procedural wrangling over arbitration of discrimination claims

Last week's ABA Journal e-Report has this story by David L. Hudson, Jr.: "Don't Stop Probes of Worker Complaints, EEOC Says;Two Courts Rule Arbitration Pact Can’t Block Agencies’ Investigations"

The EEOC views employer efforts to enforce arbitration agreements so as to preclude investigations by the EEOC or state or local discrimination agencies as unlawful retaliation for filing agency charges.

[T]wo recent court rulings on both state and federal levels allow the investigations to continue.

State circuit and federal district courts in Illinois rejected efforts by Ralphs Grocery Co. . . to prohibit the EEOC and the Illinois Department of Human Rights from investigating a discrimination charge . . . .

Ralphs . . . sent a letter to [an employee who had filed a charge] stating the arbitration agreement she signed required her to withdraw her charge. Based on this letter, [she] filed a retaliation charge . . . .

Ralphs responded . . . with a federal court action to compel [her] to submit her claims to arbitration and to prevent the state from investigating her complaint. A federal judge dismissed Ralphs’ claim based on lack of jurisdiction in November 2003. Ralphs then filed a similar petition in an Illinois circuit court, seeking a temporary restraining order to prohibit the human rights department from continuing its investigation.

On Dec. 30, Cook County Circuit Court Judge Patrick McGann rejected Ralphs’ petition in Ralphs Grocery Company v. Martinez, No. 03 CH 19589. He found that Ralphs "has failed to demonstrate it has a protectable interest in preventing the [Illinois Department of Human Rights] from investigating allegations of wrongful conduct under a system the legislature has determined to be in the best interest of the employers and employees of this state." The state court did not reach the issue of whether Ralphs could prohibit similar investigatory action by the EEOC.

The EEOC then filed its own action in federal court, seeking a preliminary injunction prohibiting Ralphs from using the state court to stop the EEOC from investigating [the] charges. The EEOC argued Ralphs could not bar it from reviewing [the] charges because such an action would "interfere with an individual’s right to file a charge" and "because such state court action is illegal retaliation that is contrary to public policy."

U.S. District Court Judge Elaine E. Bucklo granted the EEOC’s motion on Jan. 16 in Equal Employment Opportunity Commission v. Ralphs Grocery Store, No. 03-C-8927 (N.D. Ill.).
"Ralphs’ state court petition, if granted, would have a serious chilling effect on the many employees who currently work under arbitration agreements; those employees have a statutory right to file charges with the EEOC or its sister state agencies," Bucklo wrote. "If granted, [Ralphs’] injunction would have the effect of making those filings meaningless, as the agencies would be powerless to do anything about them."

Both the state and federal court opinions cited the U.S. Supreme Court’s 2002 opinion in EEOC v. Waffle House Inc., 535 U.S. 279, in which the high court ruled that an arbitration agreement between an employer and employee does not prevent the EEOC from fulfilling its statutory duties. . . .

Ralphs could appeal Bucklo’s ruling to the 7th U.S. Circuit . . . . At the state court level, the parties continue to battle over Ralph’s petition to compel arbitration.

I'd have assumed this was pretty much of a no-brainer after Waffle House. I mean if an arbitration agreement doesn't prevent the EEOC from litigating (though it limits the remedies it may obtain), why would it prevent the EEOC from investigating?

I guess large, wealthy employers that became entranced with and invested in the promise of mandatory arbitration as a panacea for pesky discrimination claims are going to fight on every related issue, assuming nothing.

Thus, rather than reducing costs and simplifying resolution of discrimination charges, these arbitration clauses in employment agreements have become -- in the hands of litigious employers and their hourly-billing legions of big-firm lawyers -- merely another means of delay and battle-of-attrition-style full-bore litigation.

Why not devote those resources to training and prevention; prompt, effective, and credible responses to agency investigations; mediation; and litigation on the merits of those (hopefully relatively few) claims which actually involve significant potential exposure and significant issues in dispute? (Just a "wondering question," as my kids' Sunday school teacher refers to thought-provoking queries)

Continued . . .

Mobile (laptop) blogging this weekend

In a first for me, I'm in a room at a Drury Inn in "downstate" Missouri near Cape Girardeau using a laptop connected to the room's free high speed internet. I'm here with my family for a swim meet (all 3 kids swimming), so my time is somewhat limited, but I hope to catch up a little on some of my blawg backlog. (I have a Word document of headlines and links I want to post that has been growing and growing.)

I'll also be working on my fee dispute opinion, which is getting quite lengthy and involved and may change when I read post-hearing submissions. I know it's nonbillable work, but it's a pretty good amount of someone else's money at stake and I'm a bit of an obsessive perfectionist about my research and writing, so I want it to be as well written and supported by legal authority as a good appellate court opinion.

Last night, I had the laptop poolside at the meet working on it, pausing only to watch my 15 year old girl swim the 400 IM (Individual Medley). That's quite a race, 4 laps of each stroke.

Continued . . .

Interesting software for administering employee leave.

I noticed a reader on my site stats from "Leave Planner." Googling this, I found this software by that name. It promises convenience, efficiency, and uniformity in administering employee leave. A free trial is available here.

(Apologies to anyone who finds it intrusive or creepy that I look at reader IP addresses. It keeps me going, just knowing the extent to which I am gaining readership among law firms, businesses, and government agencies -- my primary intended audience. Without this knowledge, I'd just quit doing this, so just look at it as the cost of readership.)

Continued . . .

Jobs stats billed as bad news because below "expectations"

Reuters reports: "U.S. Job Growth in January Disappoints"

The U.S. economy created just 112,000 new jobs in January, far fewer than expected, government data showed on Friday in a disappointing report that will likely weigh on President Bush's re-election campaign.

The fifth straight monthly gain in payrolls outside the farming sector was the largest since December 2000, the Labor Department said. However, its report still showed weak hiring 26 months after the economy climbed out of recession.

"The payrolls number was well below market expectations and confirms the jobs market in the U.S. is weak," said Daniel Tenengauzer, vice president for foreign exchange at Lehman Brothers.

Analysts had been expecting the economy, which has been showing strength in areas outside the jobs market, to add 150,000 new jobs in January . . . .

"This is the weakest job creation rate relative to economic growth on record," said Steven Wood, an economist at Insight Economics.

The economy grew at a healthy 4 percent annual rate in the final quarter of last year after a soaring 8.2 percent pace in the previous three months.

January's unemployment rate ticked down to 5.6 percent, the lowest in two years, from 5.7 percent in December. Analysts were looking for the unemployment rate to hold steady.

Here's a graphic showing the breakdown of these stats by industry types:



You know, I usually find Reuters quite objective, and I guess they are objectively reporting the pessimistic views of others, but here this data is certainly susceptible of a more optimistic view. As the graph below indicates, we continue on a steady course of increase, just not as rapid as hoped. And the unusual fact that growth has been so strong while jobs are still viewed as lagging may be largely attributable to the unusually strong productivity increases, which are unquestionably good news in the longer term.

The unemployment rate is good news, as is the fact the jobs gain is "the largest since December 2000."

And I wouldn't shed too many tears for the drop in government employment unless I knew more precisely what kind of jobs were down. Theoretically, at least, it means savings on taxes and smaller government.

Continued . . .

Time is money; money is time

A bit off-topic perhaps, but here's an interesting view from CNN/Money (Jeanne Sahadi) of personal budgeting, expressing expenditures in terms of time worked: "The time/money conundrum"

[F]or all the time you put in, how many hours of pay do you actually get to keep compared to the hours you log to pay Uncle Sam, his state and local cousins, your landlord, your car dealer and your credit card provider? How about the grocery clerk, the utility guy and the owners of all those restaurants you frequent?

Chances are the comparison isn't pretty.

The following charts summarize the points:

Continued . . .

Building web connections; kind mention from blog worth checking out

I recently ran across Workers Comp Insider, a blog published by Lynch Ryan, billed on their homepage as "a consulting firm that helps employers, insurers, third-party administrators, industry associations and government bodies to build and implement highly effective workers compensation cost control systems."

It's great to see an organization like this taking on a blog as an integral part of their web presence, and the content is excellent and plentiful. I've put it on my blogroll, had some email with the editor, and obtained a nice post on their blog, helping build the blog-web connections that are helpful to our respective readerships and rewarding to bloggers, who often toil in anonymity.

There's also a nice "About Weblogs" page, compiling useful links about and for bloggers, new blog readers, and blogger wannabes (a project I started myself, but never got to the point of posting here -- now I can just link to them ;) ).

Continued . . .

Bad job news from Challenger report on announced layoffs

Findlaw (Reuters) reports: "Job Cuts Top 100,000 in January"

Planned job cuts in January were 26 percent higher than in December as U.S. jobs moved to countries like India, China and the Philippines, and as mergers made some jobs redundant, according to a report on Tuesday.

The outplacement firm Challenger, Gray & Christmas Inc., said post-holiday job cuts reached 117,556 in January surpassing the 100,000 threshold for the first time since last October.

Financial markets were on their toes awaiting January's payrolls report to be issued by the Labor Department on Friday after a disappointing December report that showed an increase of only 1,000 jobs. . . .

According to Challenger, consumer product companies led the January cutbacks with 22,775 job cuts, the largest number of reported job cuts in that sector in a single month since 1993, according to Challenger.

Challenger said one of the main factors for the job cuts in January was an increase of employers eliminating jobs in the United States and shifting to service providers in India, China and the Philippines among other countries.

Another factor was an increase in mergers so far this year. The survey's head, John Challenger, noted in a statement that one of those mergers will result in "as many as 10,000 job cuts to take place as redundant positions are eliminated."

Can they really be THAT redundant? If so, those companies were surely being run very inefficiently pre-merger.

In any event, this is really bad news. But I'll be more interested in the official statistics, particularly the household survey data, not the payroll data, as the latter, like Challenger, is skewed in favor of what's happening with established larger employers, not startups, self-employed, etc.

Continued . . .

Perspectives on immigration reform

Much has been written since President Bush floated his immigration reform proposals last month. Here are two of the better pieces I have read recently.

1) Business Week: "This Plan May Not Get a Green Card"

This article discusses: the benefits to employers of the proposed reform; economic consequences of bringing illegal residents into the mainstream -- good and bad; practical difficulties of implementation and enforcement, including challenges of determining when a job is not likely to be filled by an American; and the political conflicts involved.

2) AP (Adam Geller): "Guest-worker proposal draws business support" (published in St. Louis Post-Dispatch)

This article discusses: real-life examples of the need for foreign workers for jobs Americans won't take; the Essential Workers Immigration Coalition; and objections of labor leaders and others.

In running down (Googling) the Essential Workers Immigration Coalition, I found this law firm position paper: "Essential Workers Help our Economy"

See also this previous post in my blawg.

Continued . . .

Workplace violence follows termination of employment

Findlaw (AP) reports: "Fired Utah Man Returns With Gun, Kills 1"

PLEASANT GROVE, Utah (AP) - A man fired from his job came back with a gun and killed a co-worker Monday, then shot himself in an office restroom, police said.

The gunman, whose name was not immediately released, was seriously wounded. . . .

The victim . . . was not the suspect's immediate supervisor . . .

[T]he gunman made threats against employees after being told he would be fired. He left the building and returned with a gun, threatening his supervisor, authorities said. A shot was fired during a struggle, but no one was hit.

The man then went outside, chased a group of about eight employees and fired several shots, hitting the victim, police said.

The gunman then went back inside the building and into a restroom.

An all too familiar story. Certainly frightening to those of us involved in terminating employees. Aside from the human tragedy of loss of innocent life and trauma to workplace witnesses, such incidents raise concerns about possible employer liability for failure to take appropriate steps to prevent such occurrences.

There is only so much an employer can do . . . but it should do what it can.

Facility security is an important element. Here I wonder why the employee was able to reenter the facility after having been fired.

Simply having rules against possession of firearms or other dangerous weapons on the employer's premises is helpful, at least as evidence of a good-faith effort to prevent workplace violence.

Any kind of reported threats of violence must be taken seriously, even if made in a joking manner.

Although law enforcement is typically reluctant to intervene aggressively on the basis of verbal threats alone, they may take a description of the individual and his or her vehicle and keep an eye out while patrolling the area.

If an individual believed to pose a possible risk of violence due to apparent emotional instability, anger problems, history of abuse, etc. is being terminated, particular care should be taken.

Finally, prevention starts in the hiring process. Drug tests and background checks appropriate to the position may help weed out potential problem employees.

Continued . . .

Junk social science testimony going to ultimate issue of retaliatory motive inadmissible

law.com has this article from The Recorder (Mike McKee): "Calif. Appeals Court Reverses Lab Firing Verdict; Expert testimony at issue in case"

A big verdict against Lawrence Livermore National Laboratory for firing a longtime employee after testifying against the agency in a sexual harassment case was gutted Wednesday when key expert testimony was thrown out on appeal.

San Francisco's 1st District Court of Appeal ruled that testimony by industrial psychologist Jay Finkelman on behalf of 14-year employee Dee Kotla was inadmissible . . . because he provided information that didn't require an expert opinion.

Kotla, a computer support technician, . . . claimed she was the victim of retaliation for testifying for . . . a secretary she supervised, in a sexual harassment suit . . . .

Finkelman was brought in to testify that several facts -- including negative comments about Kotla by in-house counsel Gabriela Odell -- were "indicators" of the lab's retaliatory intent. . . .

In Wednesday's ruling, the appeal court said Finkelman's testimony didn't help the jurors.

"Instead," it held, "that testimony created an unacceptable risk that the jury paid unwarranted deference to Dr. Finkelman's purported expertise when in reality he was in no better position than they were to evaluate the evidence concerning retaliation." . . .

"We find no basis in the record for believing that Dr. Finkelman possessed any special expertise for weighing the evidence of motive in a wrongful termination case," . . .

Good decision; but sorry comment on California courts that it was incorrectly ruled in the trial court, necessitating this appeal. Experts may be helpful on some issues in discrimination cases, but not on things a jury can decide based on common sense and life experience.

Continued . . .

Poor drafting of noncompete agreement, weak pursuit of trade secret claim leave employer vulnerable to competition

In United Rentals (N. Am.), Inc. v. Keizer (01/07/04 - No. 02-1580), the Sixth Circuit held that a former employee did not violate the non-compete provisions of his employment agreement with his former employer, applying a very literal "common sense" interpretation of the agreement.

The agreement provided:

Competition and Solicitation. For a period [of] five (5) years, neither the Employee nor any of his Affiliates shall, anywhere in the Target Area, (as herein defined), directly or indirectly, acting individually or as the owner, shareholder, partner, or employee of any entity, (i) engage in the operation of any equipment sale, rental or leasing business; (ii) enter the employ of, or render any personal services to or for the benefit of, or assist in or facilitate the solicitation of any business engaged in such activities . . . .

Following termination of employment, the employee went to work for a business physically located outside the Target Area which did one-third of its business with customers located inside the Target Area. He began soliciting and selling equipment to the former employer’s customers and engaging in other competitive activities within the Target Area.

The court held this activity was not a violation because the new employer was not located within the Target Area, focusing on the word "operation" and stating: "When ordinary speakers refer to where a business is operated, they refer to the location of the business" (emphasis in original).

While one can question the court’s interpretation, it is not unforeseeable that any ambiguity or lack of clarity in a noncompete agreement would be construed against the drafter, given that such agreements are not favored due to their anticompetitive effect. Reason to be extremely careful with the wording of such provisions.

It must be clear that if there is a geographic limitation, it applies to the location of the employee’s activities as well as the competing employer’s business. Additionally, it is usually a good idea to have a nonsolicitation-of-customers clause as a backup if the court finds some reason not to enforce the broader noncompete. Here, the nonsolicitation clause was ignored by the courts, perhaps because it was not worded clearly in terms of nonsolicitation of customers.

There also was a trade secret claim based on alleged theft of a customer list. There was evidence that the competing employer received the list from another person, glanced at it “for three minutes, determined that it would be wrong to use the list, set it down and never saw the list again.” The court concluded: “As far as anyone knows, the list that appeared . . . existed for a day and then disappeared.”

Yeah, right. My question is how much effort did the attorneys for the plaintiff put into attempting to prove otherwise? Isn’t it much more likely that the list was quickly photocopied or scanned into the competitor's computer system before being "rejected" as being "wrong"?

Careful forensic investigation of the competitor's information systems and efforts to build a strong circumstantial case that such information was used by the competitor -- based on facts such as the competitor's solicitation of the former employer's customers after it "rejected" the customer list (indicating it must have been using the information) -- may have yielded evidence that could have yielded a different result in this case.

Continued . . .