Articles include:

Cultural Cognition Insights Into Judicial Decisionmaking in Employee Benefits Cases
Paul M. Secunda

Leave As A Reasonable Accommodation Under The Americans With Disabilities Act
Ramit Mizrahi

Using Border Trade Adjustments to Address Labor Rights Concerns Under the WTO
Micah Globerson

Divorcing the Defense of Marriage Act: Judicial Tensions in Upholding the Legislated Preclusion of Federal Same-Sex Marital Rights
Linda L. Barkacs, Sherry S. Tehrani, and Craig B. Barkacs

The Future of the Student Anti-Sweatshop Movement: Providing Access to U.S. Courts For Garment Workers Worldwide
Allie Robbins

Access these articles HERE!

It seems that hundreds of concession stand employees of the Honda Center will have to wait until July 1^st to find out if they have lost their jobs. This date marks the expiration of the Honda Center’s contract with Aramark and the starting date of the contract with Anaheim Area Management (“Management”).

There has been a lack of communication from Management and whether the Management will retain the current workers or allow them to re-apply for their jobs. All that these employees know for sure are the statements given by Tim Ryan, the president and CEO of Anaheim Arena Management.  Management will “take the food and beverage portion of our business in-house.” This statement has “fueled speculation” and left the employees with fear and uncertainty whether they will have a job this summer. http://www.ocregister.com/waptest/news/anaheim-501622-arena-food.html

Ryan suggests this “in-house” decision will “increase flexibility and discretion with regard to food quality, employee training and menu offerings,” and will also “allow [them] to take on even greater responsibility for their service [the] fans and guests receive.” However, Management’s lack of response to the worker’s suggestions that related to bettering food quality undermines Management’s alleged objective. http://www.ocregister.com/waptest/news/anaheim-501622-arena-food.html

Even if Ryan’s assertions are accurate and are mostly customer driven, the potential of hundreds losing their jobs and/or benefits would shift the health costs to taxpayers under the new health care law,” Leigh Shelton, spokeswoman of Unite Here, stated. It would “push[] the cost of healthcare off of the Anaheim Ducks and onto taxpayers.” http://www.voiceofoc.org/oc_north/anaheim/article_cc7479b6-a294-11e2-99ba-0019bb2963f4.html

Tim Ryan and the rest of Anaheim Arena Management seem unwilling to listen or respond to the workers, as seen on April 10, 2013 when dozens of unions took their concerns to the customers, and protested and asked fans to sign a petition during a hockey game, but Honda Center’s management quickly put it end to this. At the least, it is vital Management listen to the thousands of local residents that attend functions at the Honda Center. It is essential for them to realize the degree of impact this will not only have on hundreds of worker’s, but will also have on the community and the reputation of the Honda Center.  http://www.voiceofoc.org/oc_north/anaheim/article_cc7479b6-a294-11e2-99ba-0019bb2963f4.html

The April 15 bombings at the Boston Marathon and subsequent manhunt for its perpetrators were national tragedies which left four dead and hundreds injured.  While the unfortunate series of events may seem quite removed from labor law, the bomber’s status as immigrants may have a larger impact than expected in the already turbulent environment surrounding immigration policy.

The butterfly effect describes the idea that small forces may result in a cumulatively large effect over time.  Throughout the month of April, labor unions and activists have been amongst the crowds gathering for rallies and protests calling for immigration reform.  The link between immigration policy and the labor force is inextricable.  The Department of Homeland Security estimates that in 2012, 1,031,631 persons became legal permanent residents of the United States, while another 757,434 persons became naturalized citizens.  This, of course, says nothing of the estimated 11.9 million immigrants without legal status.  Just as immigration reform has become a priority in Congress, the Boston bombings may succeed in shifting congressional focus from the benefits of incorporating millions of immigrants in the labor market in a more meaningful way, to the potential national security threat that immigrants pose.

As soon as Friday, April 19, members of the Senate were already linking the events in Boston to weaknesses in the nation’s immigration policies.  Though the tragedies in Boston seem worlds removed from discussions of labor law, the deadly explosions may have very well shifted the nation’s attitudes on immigration just as cries for reform were gaining momentum.

The debate over mandatory sick leave continues to challenge state and city governments across the country. Most recently, Philadelphia fell one vote short for mandatory sick days leaving 180,000 workers without the benefit. This vote followed the second time Mayor Nutter vetoed a bill that would allow hourly workers without earned sick time to earn at least one hour for every 40 hours worked—with a maximum of 56 hours for business with 20 or more employees and 32 hours for small companies. Council members opposed to the bill mandating sick days are concerned the bill will disrupt the regulatory environment that is good for business.

The recent activity in Philadelphia is just one of many highly contested battles over paid sick days. New York City’s controversy over this type of legislation even affected the race for mayor. Christine C. Quinn, New York City Council Speaker announced her campaign for mayor and subsequently jump-started negotiations on sick days, working closely with a local building service workers’ union. Negotiations seemed fruitful in that a deal was made concluding a rule that would apply to companies with 50 or more workers. In addition, companies exempt from the requirement because of their low number of employees would have to offer workers 5 days of unpaid sick leave annually. Quinn stated, “We have a good, strong and sensible piece of legislation that recognizes the needs of everyday new Yorkers and the realities that our struggling small businesses face.”

Another heated series of arguments took place in Vermont this month. Lobbyists for business coalitions argued the bill forces a “one-size-fits-all” mandate upon employers and any type of paid off time policy should be left up to the employer. Advocates form the Vermont Paid Sick days Coalition argued that employees are often forced to choose between going to work and risk worsening their condition, going into debt, or possibly losing their jobs because they get ill.

Across the country there is a deep divide over this issue. Advocates for paid sick leave continue to argue there are not only humane reasons for this type of benefit but also safety reasons. The flu season is often referenced in connected arguments as the spread of epidemics are easily facilitated by having sick employees in the workplace. Employees not financially able to miss work for being ill are therefore in the office amongst other employees, facilitating the spread of these contagious germs. According to a 2010 survey by the University of Chicago’s National Opinion Research Center, employees without sick days are more likely to go to work with a contagious illness, send an ill child to school or day care and use hospital emergency rooms for care.  With a mandated paid sick leave framework, advocates believe the workforce and country as a whole will be less vulnerable to the spread of contagious illnesses. In addition, the advocates argue that getting ill or having to taken care of your ill child or dependent elder is a matter of human nature that should be recognized through this type of legislation.

But what are the economic consequences of such legislation. It seems morally and humanly comprehensible to allow workers to take care of their illness and those that depend on them. It also seems logical that having infected workers in the workplace facilitates the spread of contagious illnesses. But, in a struggling economy as we are in today, many business owners are simply in survival mode. The National Business Group on Health issued a position paper that suggests a national mandate for companies to provide paid sick days would cost businesses up to $35.5 billion annually. So, where is the middle ground?

Whistleblowers can temporarily rejoice as President Obama’s Fiscal Year 2014 Budget proposes to protect people who disclose tax evasion to the U.S. Internal Revenue Service.  A sticking point for lawmakers and lawyers advocating on behalf of persons who report tax cheats to the IRS is the implementation of anti-retaliation protections.

In the 1986 amendments to the False Claims Act, Congress added employee whistleblower protections to offer retaliation victims remedies such as back pay, reinstatement, and special damages including attorneys’ fees.   Further, in 2011, the Securities and Exchange Commission (SEC) and the Commodities Futures Trading Commission (CFTC) implemented the whistleblower incentives and protections of section 922 and 748 of the Dodd-Frank Act.  Under, President Obama’s plan for 2014, the law would explicitly provide these long awaited protections for IRS whistleblowers.

Anti-retaliation protections are especially crucial for employees who report on employer tax evasion schemes because they help stop employers from using the threat of retaliation to hush whistleblowers.  Additionally, such protections assure whistleblowers that they are legally protected from retaliatory acts and encourage employees to blow the whistle on employers who defraud the government by hiding revenue in offshore accounts or altering financial records.

Traditionally, labor unions have been known to help workers secure better wages, more benefits, better working conditions, and provide workers with support by representing its members in disputes with management. While this vision of labor unions still holds true today, most people fail to see the most important component of modern labor unions: leverage.

Unions have traditionally provided workers with the power to create a level playing field through collective bargaining agreements (CBAs).  However, during tough economic times and a workforce suffering from unemployment, the power dynamic in the workplace has shifted. Those individuals who are fortunate enough to have jobs are not met with the even playingfield they are used to seeing. Businesses continue to demand more and more from its employees while paying the same, if not less, all within the scope of the law.

While unions may not seem to be playing the same role as they have in the past, they serve a much more important purpose today. Labor unions provide its members with leverage and an opportunity to fight back against the employer, once again leveling the playing field.  A union contract is not just about higher wages and more benefits; it serves the purpose to instill a sense of dignity amongst workers.  It reminds employers and businesses that a CBA is beneficial to both sides, protecting both the employer and the employee.

Without CBAs, the employer can virtually exercise complete control over its employees while at work without legal ramifications. However, those employees who are under a CBA have the ability to fight back.  A union contract obligates the employer to follow rules and standards of fairness established through the CBA. Throughout the country, workers represented under a CBA are able to fight back against long hours and low wages.  These workers are able to hold employers responsible for its actions and make them comply with the conditions of the previously negotiated agreement.

Unions still play a traditional role in securing better wages, more benefits, and better working conditoins, but in tough economic times they have taken a much broader role.  Workers under CBAs are able to fight back agains unjust workplace situations, while those workers not organized have little recourse to the uneven power dynamics. Unions today are protecting the dignity of the American worker, union and nonunion, and setting the current standards of employment to provide the worker with an even playingfield and leverage.

See Taylor v. Geithner, 703 F.3d 328 (2013); United States v. Sherwood, 312 U.S. 584, 586 (1941); Brown v. GSA, 425 U.S. 820, 832 (1976); see also Patrick Dorrian, “Federal Workers Cannot Sue Under Title VII for Breach of Settlement, Sixth Circuit Rules,” 40 Empl. Discrim. Rep. (BNA) 46 (Jan. 9, 2013).

(Development Authored by Joanna Solloway)

The Fifth Circuit has granted the EEOC’s petition for rehearing en banc for Equal Employment Opportunity Commission v. Boh Brothers Construction Co., No. 11-30770.  The announcement comes approximately nine months after the original Fifth Circuit panel overturned a verdict in favor of the Plaintiff, Kerry Woods.  The Fifth Circuit en banc panel could address an issue the original panel side-stepped and consider whether a sexual stereotyping claim can exist under Title VII and if so, what the standard is for establishing that claim.

The sex stereotyping theory derives from the Supreme Court’s decision in Price Waterhouse v. Hopkins, and has been recognized in the First, Second, Third, Eighth, Ninth, Tenth, and Eleventh Circuits. The theory allows a claim under Title VII where an employee is harassed or discriminated against for failing to conform to traditional gender stereotypes.  In Price Waterhouse, for example, the plaintiff claimed that she had been denied partnership in her accounting firm because some of the partners felt that she was “macho,” needed “a course at charm school,” and should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” A plurality of the Court found that the employer discriminated on the basis of gender by acting on the belief that women should not act a certain way. Again, in Koren v. Ohio Bell Telephone Co., an Ohio district court found that the male plaintiff was discriminated against for engaging in gender nonconforming behavior when he took his spouse’s surname—a “traditionally feminine practice.”  This theory has formed, in large part, in response to universal refusal to extend Title VII to cover discrimination against an employee because of his or her actual or perceived sexual orientation.  The theory has also been adopted and used by transgender individuals, who by definition challenge sex and gender stereotypes.

The plaintiff in EEOC v. Boh Brothers is a male construction worker who is part of an all-male construction crew.  He claimed that the crew superintendent, Charles “Chuck” Wolfe engaged in same-sex harassment against him by referring to him in homophobic epithets and using lewd gestures, including exposing himself.  He also claims that Wolfe called him “girlish” for using Wet Ones when he used the bathroom.  While it is clear that Woods was the subject of harassment, it is less clear whether there is a clear case for sexual stereotyping here.

In its first hearing, the Fifth Circuit panel dodged the direct question of whether sexual stereotyping violated Title VII, but suggested that, if such a claim is viable, the standard should consider whether the plaintiff objectively failed to comply with the gender norm.  The EEOC in its brief, however, argued for a subjective standard that would consider whether the harasser subjectively perceived that the plaintiff failed to conform to a gender norm.  Now that the case will be heard before the Fifth Circuit en banc, the court could clarify whether it will follow its sister circuits in recognizing a sexual stereotyping claim under Title VII and could resolve the objective versus subjective standard question.

Because of the factual situation in this case, it might not be the best case for the Fifth Circuit to adopt the sexual stereotyping standard.  It’s unclear just what the court is thinking—whether it’s looking for an opportunity to join with its sister circuits and recognize the theory, or for the right time and place to strike down the claim.  At the very least, it is an important case to watch.

See Eller v. Nat’l Football League Players Ass’n, 872 F. Supp. 2d 823 (D. Minn. 2012); Restatement (Second) of Torts, § 766B (1979).

(Development authored by Mike Fallings)

Harris v. Bloom Energy Corp., No. 13-cv-00259-LHK (N.D. Cal. Jan. 30, 2013) (consent judgment and order) ; 29 U.S.C. § 201-19; see also U.S. Dep’t of Labor, “US Labor Department Investigation Reveals Silicon Valley Employer Significantly Underpaid Workers from Mexico: Judge Orders Bloom Energy Corp. to Pay Back Wages, Liquidated Damages and Penalties,” Release No. 13-0137-SAN (Feb. 4, 2013); Eric Kurhi and Brandon Bailey, “Exclusive: Whistleblower tells story of Bloom Energy workers paid in Pesos,” Mercury News (Feb. 7, 2013) available at http://www.mercurynews.com/business/ci_22536219/exclusive-bloom-energy-whistleblower-tells-workers-paid-pesos

(Development authored by April Fuller)