Workplace Fairness

Your source for the latest developments in workplace rights and employment law. "Today's Workplace" is the the blog (weblog) written by Paula Brantner, Program Director of Workplace Fairness. In each entry, Paula focuses on legal and political information relevant to employee rights and fairness issues in the workplace. Whether you're an advocate trying to stay on top of the latest case developments and workplace trends, or a worker wanting to follow and understand the issues, keep up to date here!

Congress has been busy this week, in the waning days of this year's session. There's some good news and some bad news for workers, and believe it or not, the good news is from the House of Representatives, which voted yesterday to support efforts to prevent new overtime regulations from going into effect. The bad news came from the Senate Judiciary Committee, which also voted yesterday to move forward the 5th Circuit nomination of Charles Pickering. However, the fight on both of these fronts is only just beginning.

Overtime: As previously reported here earlier in the week, the House had an opportunity to reverse a prior vote where it narrowly voted to support the new overtime regulations. In the meantime, the Senate had voted to deny funding to implement the overtime regulations. Opponents of the overtime changes were successful in scheduling a non-binding vote in the House that would instruct those members conferring with the Senate to support the inclusion of a proposal denying funding to implement the regulations. In that vote, which occurred on Thursday, October 2, the House voted 221-203 to support the resolution.

This change would not have happened if House members had not heard from their constitutents. Typical of those changing sides is Rep. Todd Tiahrt, a Kansas Republican, who stated when questioned, "This is just one area where I thought it was in the best interest of the people of the 4th District that I support this initiative." (See Kansas City Star article (registration required).) In Tiahrt's district is a Boeing facility, where 10,000 white-collar aerospace workers would be affected. Tiahrt said engineers at Boeing Co.'s Wichita facility would see overtime become a bargaining chip "the second their labor agreement expires. They'll have to give something up in order to regain what they have today." Over 700 messages to Congress were generated at this site alone, along with all of the messages generated by other organizations on this issue, which the American public cares about strongly.

More pressure on members of the House is needed, however. The House conferees will be under strong pressure from the House leadership and the Administration to omit the overtime-related proposal from the final version of the Labor/HHS/Education appropriations bill. The President has also threatened to veto the funding bill if it contains the overtime provision. However, it is clear that overtime is no longer a strictly partisan issue, and that even House Republicans can be persuaded to dissent from the party line when it is in the interests of their constitutent voters to do so. Please act now to thank supporters for their vote and to encourage them to pressure conferees to follow the will of both the House and Senate majorities to prevent these overtime regulations from ever seeing the light of day. Or some workers will never again see the light of day...as they will be working too many hours without extra compensation to see any sunlight.

PROTECT YOUR RIGHT TO OVERTIME PAY: Keep Pressuring the House to Oppose Proposed Overtime Changes

Pickering Nomination: On Thursday, October 2, the Senate Judiciary Committee again took up the nomination of Charles Pickering. To no one's great surprise, the vote was 10-9 to move Pickering's nomination forward. The committee vote on Pickering in February 2002 was also 10-9, but at that time, it prevented Pickering's nomination from moving ahead. This vote reflects the changing composition of the committee majority: last year, the Senate and accordingly the committee had a majority of Democratic members, while this year, control has switched to the Republican party.

It is unprecedented for a president to renominate a failed nominee after the control of the Senate has switched from one party to another, and it is not yet clear whether Senate Democrats will allow this effort to succeed, or whether another filibuster will be used to stall Pickering's nomination indefinitely. Pickering's nomination has the support of Sen. Jeffords, the Vermont Independent who has tended to vote with Democrats on most nominations, and may have the support of enough Democratic senators to prevent a successful filibuster. (See Washington Post article.) Your voice is needed to ensure that Pickering's nomination will not move forward before the Senate.

Demand Fair Judges: Stop Charles Pickering

Many people think that if you have been discriminated against or otherwise harmed in the workplace, that you have a right to take that case to court and to have a jury of your peers determine whether or not your employer's conduct violated the law. In an increasing number of cases, that assumption would be incorrect. Why? Because employers are increasingly turning to arbitration to settle disputes, which means no courtroom, judge and jury, and few of the protections contained in laws and prior court cases. And yesterday (9/30), the 9th Circuit Court of Appeals, which previously had been one of the only courts nationwide to resist this development, overruled its own prior ruling to allow employers to force their employees to sign away their rights to a jury trial as a condition of getting a job.

Donald Lagatree applied for a legal secretary position at the law firm of Luce, Forward, Hamilton & Scripps, when he was told that he must sign an agreement with the law firm that in the event of any dispute about his employment, he must submit any future employment-related legal claims to arbitration. He thought this was "unfair," and worked for two days without signing the agreement, before he was fired simply for his refusal, because Luce Forward considered the practice "non-negotiable." (See EEOC v. Luce, Forward, Hamilton & Scripps, p.14524) So Lagatree decided to fight back and challenge whether employers really could force their employees to sign their rights away in order to get a new job.

Why is arbitration such a bad thing that Lagatree didn't just give in and sign the form like everyone else at Luce Forward? After all, we frequently hear about how clogged our courts are, and how long it takes to resolve lawsuits, so perhaps an alternative to a long expensive legal battle isn't a bad idea. (And it isn't a bad idea if it's voluntarily chosen by both sides.) However, an increasing number of employers, instead of waiting until a dispute arises and then working with the employee to figure out the best way to resolve it, now require arbitration, and you can believe that they would not require it if it was not in their best interest to do so.

What is the most important reason that employers choose to implement mandatory arbitration programs? It is because they believe that they have a better chance of winning in these programs than they do in a courtroom, and they're generally right. Here are some of the many objectionable aspects of mandatory arbitration, from an employee's perspective:

Arbitration Often Limits or Eliminates Essential Procedural Protections
• Arbitrators do not have to know or follow the law
• Arbitrators do not grant injunctive or remedial relief
• Arbitration does not contain the procedural safeguards of court
• Arbitrators do not have to abide by the Federal Rules of Evidence
• Arbitrators do not have to abide by the Federal Rules of Discovery
• Limited compensatory and attorneys' fees makes hiring a lawyer difficult
• Arbitrators do not have to be lawyers
• Arbitrators rarely issue written opinions
• Arbitrators do not have to justify their rulings
• Arbitrators are only regulated in two states

Arbitration Interferes with the Ability to Fully Enforce Civil Rights Laws
• The EEOC, DOL and NLRB agree that arbitration interferes with their agency's
ability to fully enforce civil rights laws
• Undermines Congress' intent in passing civil rights laws

Arbitration Often Favors Employers
• Studies show that arbitrators favor large corporations

Arbitration Often Requires Workers to Pay for the Process
• High fees discourage or make it impossible for individuals to pursue their cases
• Arbitration fees can reach the tens of thousands of dollars, depending on the case

Arbitrators Often Have Conflicts of Interest
• Some arbitration firms have financial ties to the companies they preside over

(See NELA Fact Sheet: Mandatory Arbitration Subverts Civil Rights Laws.)

Back to the ruling: here's what the 9th Circuit Court of Appeals had to say, in an 8-4 majority en banc (decided by a larger 12-judge panel) opinion: Writing for the majority, Judge A. Wallace Tashima, stated that the court's prior precedent, in the case of Duffield v. Robertson Stephens was incorrect, and must be overruled. While Lagatree and the Equal Employment Opportunity Commissiobn (EEOC), supporting Lagatree, had argued that Duffield prevented employers from imposing mandatory arbitration agreements, this view was rejected by the court.

A little history is now in order to explain the court's ruling: over a decade ago, Congress passed the Civil Rights Act (CRA) of 1991, designed to overturn several decisions of the U.S. Supreme Court that had been considered detrimental to workers. A key provision of the CRA provided for a right to certain damages and to trial by jury, previously unavailable under federal law. However, the CRA also contained language encouraging the use of "alternative dispute resolution," that is, resolution of legal disputes by means other than the courts, such as arbitration and mediation. Workplace advocates maintained that the alternative dispute resolution clause did not trump the jury trial provision--otherwise, the jury trial provision would have little meaning.

In a case decided about six months prior to the 1991 CRA going into effect (before the jury trial right was established), Gilmer v. Interstate/Johnson Lane Corp., the U.S. Supreme Court approved of arbitration in a case involving an age discrimination claim under the Age Discrimination in Employment Act (ADEA), which muddied the waters considerably because it was not clear whether the 91 CRA was intended to incorporate that case or not, and whether the case's holding could be extended to Title VII claims brought under a different statute that the ADEA. Duffield attempted to clarify this by holding that "what Congress intended to prohibit in the 1991 Act [was] mandatory requirements under which prospective employees agree as a condition of employment to surrender their rights to litigate future Title VII claims in a judicial forum and accept arbitration instead." However, both before and after the Duffield decision, every other court which looked at the same issue disagreed with the Duffield ruling, leaving the 9th Circuit standing alone when it came to prohibiting mandatory arbitration agreements.

The court's ruling essentially says "oops, we were wrong and they were right," and not much more than that. It analyzes each of the grounds that Duffield was based upon, and determines that they were incorrectly decided. While there has been an intervening 2001 U.S. Supreme Court case (Circuit City v. Adams) that some thought could provide a basis for overturning the decision, the court makes clear that its ruling is not based on the Circuit City case. Otherwise, it almost appears to be a matter of peer pressure: "when other courts looked at this issue, they ruled the other way, so maybe we should too." This statement in the ruling typifies the court's approach to analyzing this issue: "In the post-Gilmer world, our decision in Duffield stands alone. All of the other circuits have concluded that Title VII does not bar compulsory arbitration agreements." (See EEOC v. Luce, Forward, Hamilton & Scripps, p.14530)

This approach provoked bitter dissents from two of the members of the panel participating in the decision. Judge Pregerson in one of the dissents writes "The underlying purpose was not to allow employers to shove arbitration provisions down the throats of individual employees as a non-negotiable precondition of employment. But sadly that is the consequence of the majority’s holding." (See EEOC v. Luce, Forward, Hamilton & Scripps, p.14552) In the other dissent, authored by Judge Reinhardt, the judge forcefully chastises his colleagues who joined the majority, stating "my colleagues continue the current judicial trend of closing the doors to the federal courts to those who most need our protection. This time the majority closes those doors to employees against whom employers discriminate on the basis of race or sex. Regrettably, my colleagues in the majority have joined a number of other circuits in rewriting Title VII’s mandates to comport with the judiciary’s historic disregard for workers’ rights and its elitist preference for fewer jury trials and less crowded appellate dockets." (See EEOC v. Luce, Forward, Hamilton & Scripps, p.14554) Strong stuff, but it is clear that Judge Reinhardt understands what is at stake in this decision.

Here's what Cliff Palefsky, Lagatree's attorney, has to say about the decision:

Arbitration is not a separate but equal forum. The civil rights laws have no meaning if you are forced to waive the right to have them enforced correctly as a condition of getting a job. The very purpose of the 1991 amendments was to give employees the right to have these claims heard by a jury in a public court, not secret tribunals with no right of appeal.

What is the effect of this ruling? After all, it merely adopts what is already the law in many other courts around the country, but it is nonetheless a significant opinion. After this week's ruling, more and more employers, especially those in the eight states that are part of the 9th Circuit, are likely to implement mandatory arbitration programs, to the extent that it benefits the employer's financial interest to do so (and it often does.) National employers who want to have uniform policies for their employees throughout the country are no longer held back by a differing 9th Circuit view. There no longer exists an alternative precedent for courts which have not yet resolved this issue, so thus more courts are likely to join the overwhelming judicial tide (just like the 9th Circuit did) now in support of these agreements.

Since employers in California are bound by a state court decision, Armendariz v. Foundation Health Psychcare Services (PDF), which requires that the agreements be fair and not overwhelmingly biased in favor of the employer, the battle in California will now shift to whether a particular agreement is fair, and not whether it is legally permissible in the first place. Armendariz requires such minimum protections as neutrality of the arbitrator, the provision of adequate discovery, a written decision that will permit a limited form of judicial review, limitations on the costs of arbitration, and the availability of all types of relief (damages, attorneys' fees, etc.) that would otherwise be available in court. However, one way that California residents can fight back is to encourage Gov. Gray Davis to sign pending legislation, AB 1715, which would prohibit mandatory arbitration agreements in California regarding rights guaranteed by the state's Fair Employment and Housing Act. To write a letter to Gov. Davis urging him to sign AB 1715, please visit our site's new Action Alert.

Those of you in the rest of the country, especially in the seven other Western states affected by this legislation, should consider urging your representatives to pass similar legislation to that proposed in California, and should support Congress taking action to outlaw mandatory arbitration agreements passed on the federal level. To learn more about federal legislation, see NELA's Mandatory Arbitration page. (This legislation has not been reintroduced this year, but is expected to be reintroduced soon.)

Only if employees and others affected by these decisions speak out will legislators be motivated to stem the tide of mandatory arbitration sweeping our country; it is now clear that not many courts will any longer protect the interests of employees when confronted with mandatory arbitration agreements.

Additional Information About EEOC v. Luce Forward:

9th Circuit Tosses 'Duffield' in Dustbin (The Recorder article)
Appeals Court OKs Workplace Discrimination Arbitration (AP article)

This Thursday (10/2), the Senate Judiciary Committee is expected to again take up the nomination of Charles W. Pickering, Sr. for the 5th Circuit Court of Appeals. The move is likely to incite intense partisan debate over the propriety of resurrecting a nomination that was killed in the previous Congress by the Judiciary Committee, then controlled by a Democratic majority, along with Priscilla Owen, who was similarly renominated to the 5th Circuit. On Thursday, October 2, the Senate Judiciary Committee is expected to vote on Pickering’s nomination, even though several new senators have joined the Committee since Pickering’s previous hearing in 2002. If Pickering’s nomination is approved by the Committee, it will then move to the Senate floor, so please act now!

If Pickering squeaks through the Judiciary Committee this time, then the pressure will be on Democrats to mount a filibuster to stop Pickering's nomination the way that Owen's nomination has now been stalled for months. Pickering's record shows a consistent opposition to efforts to remedy racial injustice, with indifference, and even outright hostility, toward those seeking to remedy perceived injustice, including workplace discrimination claims. Many questions have been raised about his ability to judge fairly and in a manner that is free of bias, as he displays a tendency to inject into his rulings his personal opinions and biases, raising serious questions about whether he is ruling based on personal views or on the dictates of the law. Judge Pickering also testified inaccurately in 2002 that federal courts almost never deal with valid employment discrimination cases, because almost all legitimate claims are settled through mediation.

Workplace Fairness urges you to oppose the nomination of Charles Pickering, Sr. for the following reasons:

In the vast majority of the published and unpublished civil rights cases available, Pickering ruled against civil rights plaintiffs. In the 17 summary judgment opinions reviewed (most of his civil rights cases are unpublished and unavailable), Judge Pickering ruled in favor of the employer on federal claims in all but three cases. At his hearing, Judge Pickering was asked about his record of strongly favoring defendants in employment cases. Incredibly, he defended his record by claiming that almost no employment discrimination cases that come before the federal courts have merit, because the meritorious ones are resolved by the Equal Employment Opportunity Commission. However, only a very small percentage of EEOC complaints result in successful mediations and the EEOC has very limited resources to initiate lawsuits on its own. Other cases have to be resolved by the federal courts through cases brought by the alleged victim of discrimination. Of course, if a federal judge wrongly believes that the employment cases over which he or she presides are automatically without merit, the victims of discrimination really have no redress at all.

Judge Pickering goes out of his way to disparage civil rights protections and plaintiffs. Judge Pickering’s decisions in employment cases appear to bear out the comments he made during his hearing. Although most of his employment discrimination opinions are unpublished, Judge Pickering has often gratuitously injected into his opinions a written lecture about plaintiffs who he believes should not be in federal court asserting civil rights claims. Typical of his comments: “The fact that a black employee is terminated does not automatically indicate discrimination. The Civil Rights Act was not passed to guarantee job security to employees who do not do their job adequately.”
(Seeley v. City of Hattiesburg; see also Johnson v. South Mississippi Home Health)

Judge Pickering refuses to follow procedural standards affecting plaintiffs in discrimination cases. In determining whether an employment discrimination claim is to be decided by a jury, Judge Pickering has frequently taken a narrow view of the evidence offered by the plaintiff, contrary to principles that require the evidence at this stage to be viewed in the light most favorable to the plaintiff. (Thornton v. Walker) Judge Pickering has also been unusually harsh with respect to sanctioning and threatening to sanction civil rights plaintiffs. For example, he awarded attorneys’ fees to a defendant in at least one employment discrimination case filed by an African-American registered nurse. (Johnson v. South Mississippi Home Health) It is questionable enough for a judge to refuse to allow a case to go to a jury that he describes as “fairly fact intensive,” but it is almost unheard of for a judge to award attorneys’ fees to a defendant in a fact-intensive case in which the plaintiff produced some supportive evidence, as federal law provides that a plaintiff has to pay a defendant’s attorneys’ fees only for “frivolous” cases.

Judge Pickering’s legal career is characterized by numerous instances of insensitivity to the rights of African Americans. As a law student, he published a law review article advising how Mississippi’s statute imposing criminal penalties for interracial marriages could be strengthened to make it fully enforceable. As a state senator, he cast several votes impeding the full extension of electoral opportunities to African-Americans. He also testified in 1990 that he had never had any contact with the state Sovereignty Commission, a notorious state-funded agency established after the Supreme Court’s landmark decision in Brown v. Board of Education to investigate civil rights advocates and block integration efforts—a statement flatly contradicted by Sovereignty Commission records, which indicate he had “requested to be advised of developments” regarding a Commission investigation. Both the Mississippi NAACP and the Congressional Black Caucus oppose Pickering’s nomination because of his "career and record on civil rights."

The Fifth Circuit does not need any more extremists on race and discrimination issues. The Fifth Circuit, where Pickering would serve if confirmed, has one of the highest percentages (33%) of people of color of any circuit in the country, and in recent years has issued many of the most extreme civil rights rulings in the country, some of which have been reversed by a conservative U.S. Supreme Court.

Judge Pickering’s available opinions and testimony about his view of discrimination cases indicate hostility to plaintiffs who bring employment discrimination cases and an overwhelming tendency to decide matters of fact in favor of the defendant, often without hearings. Pickering’s view of employment discrimination cases seriously place in doubt his ability to maintain an open mind about these matters were he to be confirmed as a federal judge. Your voice is needed to help insure that your Senators look closely at Pickering’s anti-civil rights record.

Take Action Now: Stop Charles Pickering

More Information About Charles Pickering:

Statement Of Senator Patrick Leahy On The Nomination Of Charles Pickering

The Case against the Confirmation of Charles W. Pickering, Sr., to the U.S. Court of Appeals for the Fifth Circuit (Alliance for Justice report)

Judge Pickering, Again (New York Times editorial)

New Nominee Ploy by Hatch (Deseret Morning News article)

Pickering Fight Set for Round 2 in Senate Panel (Memphis Commercial Appeal column)

GOP Senators Ready to Start Fighting for Pickering Nomination Again (Associated Press article)

Panel expected to OK Pickering (Clarion-Ledger (MS) article)




(note: some information for this blog entry was provided by the Alliance for Justice.)

This week, the U.S. House of Representatives is expected to schedule a key vote on changes to overtime regulations that could affect millions of workers. While the House narrowly defeated a previous effort to overturn proposed overtime regulations, the vote was so close that there is still yet hope that the overtime proposal will be defeated. However, it is critical for the House to hear from millions of workers, to emphasize just how important this issue is for American employees, who rely on overtime to make ends meet and to limit the number of hours spent at work and away from their families.

As reported here previously, when the House previously considered whether to overturn the proposed overtime regulations, the effort to do so was rebuffed in a very close 213-210 vote, in which some Republicans in labor-friendly districts joined the Democrats on the losing side of the battle.

However, in the Senate, believed by many to be the more liberal of the two houses of Congress, opponents of the proposed overtime changes were initially more successful than their colleagues in the House. On September 11, the Senate, in a 54-45 vote, successfully passed an amendment to the appropriations bill funding the Labor, Health and Human Services, and Education Departments, which would prevent the Department of Labor from spending any money to implement the proposed regulations. (See CBS News article.) Six Republicans split from the rest of their colleagues on the vote: Six Republicans split with the administration on the vote, including three -- Sens. Arlen Specter of Pennsylvania, Ben Nighthorse Campbell of Colorado and Lisa Murkowski of Alaska -- who are on the ballot in 2004. The other three were Sens. Lincoln Chafee of Rhode Island, Olympia Snowe of Maine and Ted Stevens of Alaska. Sen. Zell Miller of Georgia was the only Democrat who voted with the Republican minority on the overtime vote. (See AP article.)

Now the issue is back before the House of Representatives, and opponents of overtime changes think they may have an opening, given the closeness of the vote and the absence of several supportive Democrats on the day the previous vote was taken. (See Dow Jones article.) While the previous vote itself will not be revisited, the House can vote to instruct its conferees (the members of the House who will be working with members of the Senate to resolve differences between the houses on the appropriations bill) to join the Senate version of the bill with the overtime-related provision attached. Or it can stick to its guns, which will likely mean the bill will move forward to the President without any overtime-related provisions attached.

Whatever the House ultimately decides to do, and whether it is possible at this point to derail proposed overtime changes remains to be seen. However, the vote is only likely to be swayed from the previous outcome if House members hear from workers who vote. Since the vote could happen on Wednesday, October 1, it is critical to act now and express your opinion to Congress.

Take Action Now: Protect Your Right to Overtime Pay
More Information about Proposed Changes