HR/Employment Blogosphere update for August 1, 2005
This week, I’m coming up a bit short of what I’d like to have for this feature. I can’t keep up with all the fine writing going on in this corner of the blogosphere.
As regular readers will recall, I recently participated as one of the rotating weekly editors of the Blawg Review, a blog “carnival” for Blawgs (blogs by lawyers). The “carnival” concept is well described here.
Why am I saying this? Because I see continuing readership interest in this HR/Employment update feature, yet it drains a considerable part of my blogging time and energy every week — and affects Personal Life George for the worse, involving weekend work every weekend.
So I’m toying with creating a blog carnival for this purpose. What I need now is a showing of interest. Please let me know by email or the comment feature below whether you would be interested in participating as an editor on a periodic basis, preparing a weekly edition. I’m particularly interested in those of you with blogs I read and include here or on my blogroll, but readers who have no blog would be welcome to take a turn at editing as well.
Now on to this week’s edition. Table of contents:
- Labor (AFL-CIO split)
- Safety (BP tragedy caused by staffing cutbacks?)
- Workplace Trends (23 theses about future of work)
- Discrimination Litigation (big hole in EPLI insurance policy; McDonnell Douglas Optional?; optimistic view of ADA)
- July’s Top Posts
- Bonus: A Websurfing Surprise
The Employment Law Bulletin has more links and a comment on the AFL-CIO and Change to Win under the title: “Disorganized Labor”
Jottings By An Employer’s Lawyer writes: “Labor Split - Is it Personalities or is it Private v. Public?” Jottings clearly summarizes the non-personality angle on the split:
[T]he debate is over which of two paths is the way to labor’s rejuvenation — through support and encouragement (i.e. money) for politicians which will lead to a more favorable climate for organizing; or more money on organizing, which will make organized labor stronger vis a vis employers and will have the added benefit of creating more political clout.
Personally, I’m with Change to Win, to the extent the idea is to stop using compulsory unionism to plow hard-earned employee mandatory dues money into political spending — which may not be the employees’ preferred mode of political spending (actually, I suspect most would rather keep the money for themselves and not spend it on any political campaigns).
Plus, I think the political approach is flawed in believing the unions’ membership woes are due to unfavorable governmental and legal factors. The fundamentals of labor law haven’t changed that much since labor’s heydey.
The bottom line is that employees who really want a union need only file a properly supported petition with the NLRB and prove in an NLRB election that the majority of their coworkers want the union.
I know — the unions can talk my ear off about why it’s not this simple, but I have a lot more respect for someone like Andy Stern who wants to jump in there and persuade employees he’s got something they want (union representation) than someone who wants to whine and make excuses and use employees’ money to buy politicians who will change the laws in their favor.
Confined Space posts: “Unsettling Questions at BP Texas City — Wall St. Journal,” summarizing a front page WSJ article about the BP explosion that killed 15 workers and injured 170, indicating cutbacks in staffing and maintenance may have caused the explosion.
See also Workers Comp Insider: “BP’s Damage Control.”
The Future of Work Weblog expansively posts: The ReFormation of Work. Remember the Christian Reformation and Luther’s theses from history class? these are “23 Theses” about the future of work.
Jottings By An Employer’s Lawyer comments: “It Took Martin Luther 95 Theses - These Guys Are Up to 23,” concluding: “Opening up the whole body of employment law to negotiation on how to handle ‘a new relationship of people to organization’ — now that would be most interesting. But then most revolutions are.” Indeed.
The Employment Law Bulletin writes: “EPLI Coverage May Not Be All That It Is Cracked Up To Be,” about a “Fifth Circuit. . . case . . . that should have all employers and employment defense counsel not walking but running to check the language in their EPLI policies.
See also Jottings By An Employer’s Lawyer on the same case: “Check Your EPLI Policy - When Coverage For Discrimination Doesn’t Mean The Most Common Type of Discrimination Claim” Don’t miss the pithy comment: “This is an IDIOTIC decision.”
I know insurance companies don’t make their money by freely paying claims, but when they litigate coverage over fine print exclusions that are contrary to the clear intent of the policy, they deserve to lose customers, thus losing far more money than they save from the crabbed interpretation.
Donald at All Deliberate Speed just posted this: “Seventh Circuit: McDonnell Douglas Is Optional.” Haven’t read the case, so I won’t dispute Donald’s analysis. I suspect, though, that applying McDonnell-Douglas wouldn’t have yielded a different result. I love Donald’s primer lesson on McDonnell-Douglas (though oversimplified):
When a plaintiff lacks “direct evidence” of discrimination (e.g., a memo from the decisionmaker saying “Don’t hire Jim because he’s black”), engage in a three-step analysis. First, the plaintiff must establish a prima facie case (which most courts describe as a minimal burden) by showing: (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances supporting an inference of discrimination. Assuming the plaintiff meets that burden, the defendant must proffer a legitimate, nondiscriminatory reason for the decision (e.g., the other guy was more qualified/didn’t smell as bad/could tie his shoes). Once that’s proffered, the plaintiff then must show that this proffered explanation is, in fact, a pretext for discrimination.
Disability Law writes: Harkin on ADA Anniversary, linking to an op-ed by Senator Harkin in the Des Moines Register. Quite an optimistic perspective, especially for a Dem.
Blawg Review #15 7/18/05 (357 pageviews)
HR as black sheep of dysfunctional corporate family 7/27/05 (341 pageviews)
Was GM thinking about employee impact of new “employee discount for everyone” campaign? 6/12/05 (142 pageviews)
Questions to NOT Ask During the Interview: A Quick Review 6/22/05 (137 pageviews)
Tattoos in the workplace revisited 5/20/05 (127 pageviews)
Tattoos & piercings remain hot topic, at least in St. Louis 6/21/05 (121 pageviews)
Ask the Experts: Hot Trends in HRM 7/12/05 (97 pageviews)
Observations: Interesting that 4 of 7 predate July, and 2 of those 4 concern tatoos. I wish I knew how many of those hits were from employees worried about their tatoos interfering with their employment prospects or status, and how many were from employers trying to learn how to deal with the issue. Note to self: write more on tattoos and piercings.
In Confined Space, I read this tantalizing headline: “What Do You Get When You Mix The Talmud With Environmentalism.“
Just one click and I was at Quicksilver, a “commentary on rabbinic texts and toxicality.”
It’s not all this peculiar mix of ancient Jewish law and environmental science. One more click and I’m looking at “Is Harry Potter patur (permitted) for Jewish readers?” and “Harry Potter & Jewish law: Quidditch as an occupational hazard” and “Matt Clement meet Rabbi Moshe Feinstein” (beanballs in baseball).
The Jewish love of legal reasoning and debate is, to me, a truly wonderful thing that has (directly or indirectly) made great contributions to American law. Love seeing it alive and well in such a quirky blog!
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George, thank you so much for the kind review! (Sorry about delayed reaction; I’ve been away.) Not sure I can add to the contributions of Jewish legal reasoning to American law, but it’s worth a try. Your enthusiasm is greatly appreciated out here in the margins of the blogosphere…
Take care,
Kaspit