Travails of French employers under the Code du Travail — though it’s not as if America doesn’t have plenty of firms that follow the same strategy of keeping head counts below a certain regulatory-trigger threshold. [Business Week]
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It’s the old story: many smaller truckers have been trying to resist the mandate, which costs an estimated $1,500 per truck, but some larger truckers that already use the devices have encouraged its passage. The Federal Motor Carrier Safety Administration (FMCSA) estimates that the mandate will cost $2 billion; it’s meant to make it easier to monitor compliance with limits on how many hours truckers can be on the road. [James Gattuso, Heritage]
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The intersection of the Americans with Disabilities Act’s “reasonable accommodation” mandate with the Family and Medical Leave Act’s mandate of unpaid time off for illness has long posed a head-scratcher for employers. The EEOC is planning to issue clarifying guidelines on leave-as-accommodation, but organized employers fear the commission’s very liberal leadership may be working up new and extra-onerous legal interpretations. [Bloomberg Business Week; EEOC; Susan Lessack, Pepper Hamilton; Marie Larsen, Recruiter.com]
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The popular management technique, adopted in countless workplaces in response to legal and regulatory pressure, may inadvertently intensify rather than extinguish prejudice, argues Peter Bregman in Psychology Today. Earlier here, here, and, on sexual harassment prevention/sensitivity training, here, here, here, etc.
More: From Hans Bader, why it persists despite failure — in education, accreditation rules are one important driver — and why trainers have been known to encourage employers in mistaken beliefs (such as that public employees can and should be disciplined for criticizing affirmative action policies) that are at variance with court holdings.
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Mitt Romney, following a long tradition of GOP candidates unable or unwilling to resist the continued expansion of employment discrimination law, has pre-emptively blessed Congress’s 2009 enactment of the ill-advised Lilly Ledbetter Fair Pay Act gutting statutes of limitation. Hans Bader offers reasons why he should consider drawing the line. [Examiner] More: Ted Frank.
Related: Wisconsin Gov. Scott Walker signs bill repealing duplicative damages law passed by his Democratic predecessors, thus contradicting the accepted narrative in which the scope of available damages in job-bias suits is supposed to be revisable only in an upward direction.
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“A 7 percent hiring quota for government contractors is unfair and unwise.” [WSJ] My contribution on the subject is here (more).
More: David Harsanyi at Human Events (quoting my February piece).
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- “Increasing Employment Discrimination Awards to Take Account of Adverse Tax Consequences” [TaxProf]
- NRA’s wrong on this: “Bill to bar employer bias against gun owners gets OK from Missouri House” [St. Louis Post-Dispatch]
- ALJ: “we are an at-will employer” handbook statement violates NLRA [Duane Morris Institute]
- “What the EEOC’s Strategic Plan Means for Employers” [Laura Harshbarger, NYLELR]
- Connecticut bill would require public schools to teach organized labor history [Raised S.B. No. 304; background from a supporter, PDF; h/t Fountain]
- SEIU hand seen in “Occupy”-allied sit-ins targeting GOP politicians [Richard Pollack, Daily Caller]
- Wage and Hour Litigation is Big—and Getting Bigger” [Shannon Green, Corporate Counsel]
When employees request reassignment to other jobs within an organization as an accommodation to their disability, is the employer obliged to do so even though other more qualified employees are in contention those same jobs? Or is it enough to assure the disabled employee fair consideration in a competitive process? The federal circuit courts are split on the issue, which could tee things up for Supreme Court consideration at some point. [Jon Hyman]
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Author/attorney Tim Sandefur dropped us a line as follows:
“I’ve lately been reading Mark Twain’s book Following The Equator, and I came across a passage in which he talks about employment recommendations. What he says immediately made me think of you — how employment law has changed!”
The first Bearer that applied, waited below and sent up his recommendations. That was the first morning in Bombay. We read them over; carefully, cautiously, thoughtfully. There was not a fault to find with them – except one; they were all from Americans. Is that a slur? If it is, it is a deserved one. In my experience, an American’s recommendation of a servant is not usually valuable. We are too goodnatured a race; we hate to say the unpleasant thing; we shrink from speaking the unkind truth about a poor fellow whose bread depends upon our verdict; so we speak of his good points only, thus not scrupling to tell a lie – a silent lie – for in not mentioning his bad ones we as good as say he hasn’t any. The only difference that I know of between a silent lie and a spoken one is, that the silent lie is a less respectable one than the other. And it can deceive, whereas the other can’t – as a rule. We not only tell the silent lie as to a servant’s faults, but we sin in another way: we overpraise his merits; for when it comes to writing recommendations of servants we are a nation of gushers. And we have not the Frenchman’s excuse. In France you must give the departing servant a good recommendation; and you must conceal his faults; you have no choice. If you mention his faults for the protection of the next candidate for his services, he can sue you for damages; and the court will award them, too; and, moreover, the judge will give you a sharp dressing-down from the bench for trying to destroy a poor man’s character, and rob him of his bread. I do not state this on my own authority, I got it from a French physician of fame and repute – a man who was born in Paris, and had practiced there all his life. And he said that he spoke not merely from common knowledge, but from exasperating personal experience.
(& State Bar of Michigan News)
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I’ve got a new op-ed at the Daily Caller on one of Washington’s more ambitious schemes of arm-twisting private businesses for the presumed good of society, and a post at Cato at Liberty tying it in with the curious legal situation in which — even before quotas! — some employers feel obliged not to discriminate against school-bus-driver applicants who’ve recently been in rehab. The WSJ covers the story today too. The Notice of Proposed Rulemaking is here (& Disability Law, more, Bader).
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- Two retaliation cases that should scare employers [Robin Shea via Jon Hyman]
- Maryland law redefining independent contractors as employees vexes flooring business [Bethany Rodgers, Frederick News Post, editorial, earlier] New York Times on minimum wage 1987 vs. 2012: 1987 made more sense [Mark Perry] E-discovery drives up cost of wage and hour litigation [Jon Hyman]
- Irony alert: “Unionized workers organize against National Labor Relations Board” [Adam Jablonowski, Daily Caller]
- Proposals to create new rights for public employee unions [Ivan Osorio/CEI, federal; Jack Mann/CEI, California] Courtesy LA taxpayers, garage monitor at L.A. Department of Water & Power makes $74K/year as compared with $21K elsewhere [L.A. Times via Amy Alkon] Connecticut governor proceeds with plans to herd personal care attendants into union [Trey Kovacs/CEI]
- Colorado measure regulating use of credit records in hiring is solution in search of problem [Mark Hillman, Colorado Springs Gazette]
- Connecticut proposal to ban unemployment discrimination heats up [Daniel Schwartz]
- German high court orders universities to raise salaries for starting professors [Walter Russell Mead]
The author, reporter, and legal commentator has just posted a nicely designed online archive of his work, often linked in this space.
- Fueled by liberal foundation grants and federal money, “Restaurant Opportunities Center” launches litigation campaign against chain-eatery leader Darden [Orlando Sentinel] Still to be explained: why the Detroit Chamber of Commerce would be so happy to announce a business-backed non-profit’s funding for ROC.
- Major employment plaintiff’s firm Outten & Golden promotes Hearst magazine intern class action [Romenesko, Reason]
- “Retaliation Charges Pose Growing Threat to Free Speech” [Hans Bader, CEI]
- Debate: “Should state outlaw requirements that job applicants be employed?” [Pia Lopez/Ben Boychuk, Sacramento Bee]
- “Is it time to do away with McDonnell Douglas?” [burden-shifting test in job bias cases; Jon Hyman]
- Supposed exemption from OSHA for under-10-employee businesses is mostly myth [Eric Conn, EBG]
- WSJ is kind enough to pick up my item on Italian labor law professors as a “Notable and Quotable” today;
- New York Times fires 23 employees after searching their emails and finding that they had forwarded blonde and ethnic jokes and other common forms of workplace humor [eleven years ago on Overlawyered]
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Lawmakers seem intent on depriving employers of any clear definition: “It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don’t, than we do making the potentially costly determination of whether an individual is disabled under the ADA or one of the state versions.” [Michael Fox]
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Update: Adam Liptak covers this case today in the New York Times and generously quotes me:
Walter Olson, a fellow at the Cato Institute, the libertarian group, and the author of “Schools for Misrule: Legal Academia and an Overlawyered America,” said there was nothing unusual about the number of Republicans on Iowa’s law faculty.
“What would count as freakish would be to find two dozen registered Republicans on a big law faculty,” Mr. Olson said. “Law schools are always setting up committees and task forces to promote diversity on their faculty, which can serve to conceal an absence of diversity in how people actually think.”…
Mr. Olson said he had mixed feelings about the Eighth Circuit’s decision, saying it may have identified an instance of a real problem while allowing it to be aired in the wrong forum.
“I have serious misgivings about asking the courts to fix this through lawsuits,” Mr. Olson said. “It threatens to intrude on collegiality, empower some with sharp elbows to sue their way into faculty jobs, invite judges into making subjective calls of their own which may reflect their assumptions and biases, all while costing a lot of money and grief.”
“At the same time,” he added, “there’s a karma factor here. Law faculties at Iowa and elsewhere have been enthusiastic advocates of wider liability for other employers that get sued. They’re not really going to ask for an exemption for themselves, are they?”
(& Althouse, Leef/Phi Beta Cons, Horwitz, Instapundit, State Bar of Michigan, Bainbridge, Elie Mystal/Above the Law, Kent Scheidegger/Crime and Consequences, Andrew Kloster/FIRE and earlier, Federalist Society blog, earlier)
[Original post:]
“A woman who alleges she was denied a job at the University of Iowa College of Law because of her conservative politics can proceed with a discrimination lawsuit against the school’s former dean, a federal appeals court ruled [last month].” [WSJ Law Blog, Ryan Koopmans/On Brief: Iowa Appellate Blog, Risch/PrawfsBlawg, Ilya Somin/Volokh (arguing "that ideological discrimination in faculty hiring by state universities doesn't violate the Constitution")] The court found it significant that of approximately fifty professors who vote on faculty hiring matters at the school, per the lawsuit’s allegations, “46 of them are registered as Democrats and only one, hired 20 years ago, is a Republican.” (Who was the one?)
In Schools for Misrule last year, I made the case that prominent law schools suffer from an egregious ideological imbalance, to the point where their own declared mission suffers in a number of ways. Beyond that, I agree that there is a particular logic in asking government-run institutions, such as the University of Iowa, to be open to a plurality of legitimate viewpoints. Even so — as readers who remember an earlier book of mine, The Excuse Factory, will have guessed — I have severe doubts that lawsuits by disappointed job applicants will really do much to improve fairness in the workplace and counteract arbitrariness in hiring decisions. Such lawsuits seem equally likely to provide a legal weapon to contentious applicants whether or not their talents are clearly superior, invite outside arbiters to apply subjective standards of their own, and take a great toll in collegiality, time, expense and emotional wear and tear, all while encouraging defensive employment practices that help no one. Still, this is not the view of law faculties at places like Iowa, which have tended to cheer on the expansion of employer liability year after year with great enthusiasm. So it may be rather hard for them to mount a convincing complaint when they are made to drink from the cup they have prepared for the rest of society.
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- Age discrimination law (including my views) discussed [Reihan Salam, NRO] “3d Cir.: Employees Fired for Pornographic Emails Lose Age-Discrimination Case” [Molly DiBianca]
- Will Obama administration lawsuit derail employer use of career-readiness certificates? [Charlotte Allen, Minding the Campus]
- A warning for Gov. Cuomo: “The case against pension-financed infrastructure” [Edward Zelinsky, OUP]
- EEOC is on the warpath and employers had better hope they escape unscathed [Hans Bader, CEI]
- Since we know unemployment extensions have no incentive effects, this story from the Midwest is purely imaginary [Marietta, Ohio Times, related]
- Court rejects “announcement of same sex marriage harassed me” hostile environment claim [Volokh] “Jobs with a higher risk of sexual harassment pay workers more” [WaPo] Half of all students harassed? Surprising it’s only half [Katie Roiphe, NYT]
- Funny-sad “666″ workplace suit: “The safety sticker of the beast” [Volokh]
- “Do you know what an employment lawsuit costs?” [Jon Hyman]
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A plaintiff’s-oriented group crusading for such legislation managed to come up with only a relative handful of employer advertisements exhibiting supposed bias against the unemployed. And on scrutiny not all of those ads turned out in fact to be “exclusionary”:
For example, national recruiter Kelly Services placed the following ad in the St. Louis area: “Currently employed but lacking growth in terms of responsibilities and technical proficiencies? If so, Kelly IT Resources-St. Louis wants to talk to you!” NELP zeroed in on “currently employed,” counted it as discriminatory, and ignored the rest of the posting. Common sense dictates that marketing to the currently employed looking to advance does not signal a rejection of the unemployed.
[Michael Saltsman, Wall Street Journal, earlier here, etc.]
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