Sampling of today's reporting on yesterday's Supreme Court harassment decision; some further thoughts on this decision

Here are a few news reports on the decision I reported here yesterday.

Interesting variation in emphasis, to say the least.

From the New York Times: "Rules Are Set for Some Harassment Cases"
(by Linda Greenhouse)

In an important ruling on sexual harassment . . . , the Supreme Court . . . set guidelines for assessing an employer's liability for working conditions that become so unendurable as to lead a reasonable employee to resign . . .

The court held that an employer could ordinarily defend itself in such a situation by showing that it had adequate procedures in place for reporting harassment but that the employee failed to use those procedures.

But that defense is unavailable . . . if a supervisor or manager had engaged in an "official act" like a demotion or reduction in pay that contributed to the intolerable work environment. Read more

Good reporting. Proper emphasis on case as a victory for employers -- affirmative defense is normally available.

On the other hand, look at this misleading headline from Philly.com: "She Can Sue State Cops" (by Nicole Weisenseegan)

Nancy Drew [her namesake] Suders, the feisty Fulton County grandmother who said crotch-grabbing, animal-sex-talking Pennsylvania State cops forced her to quit her dispatcher job because of their raunchy behavior, just got a big wet kiss from the nation's highest court.

Yesterday, the U.S. Supreme Court ruled in an 8-1 decision that employees who say they were forced to resign because of sexual harassment can sue their employers. . .

Well, technically this may have been the first time the Supreme Court applied the doctrine of constructive discharge to sex discrimination or sexual harassment, nobody had any real doubt it was potentially applicable, and this was not the issue upon which the Court granted review.

The decision sets a new standard for sexual-harassment cases and clarifies a 1998 ruling [that] . . . said that employers could be held liable, even if top managers didn't know about the harassment, when it resulted in a "tangible employment action" against the worker like firing or demotion. The Suders decision now includes being forced to resign as a tangible employment action.

This is very misleading. The court held being forced to resign is not a tangible employment action, except in very limited circumstances.

The opinion also means that a jury will finally get to hear from Suders. Ginsburg sent the case back to District Court for trial. Read more

This last point illustrates something we often forget with appellate court and Supreme court decisions: the consequence for the individual parties may be quite different than the significance of the decision for the development of the law.

And finally, from the Indianapolis Star (Knight Ridder Newspapers):
"Court delivers mixed message on harassment; It's now easier for workers to sue, and for employers to defend against suits" (by Stephen Henderson and Larry Fish)

The Supreme Court gave a modest lift Monday to employees who quit over intense sexual harassment and then sue but also said it should be easier for employers to defend themselves against such litigation.
The 8-1 ruling means that Nancy Drew Suders . . .can take her case to a jury. But the state will be permitted to counter Suders' claims with evidence of its policies against sexual harassment and Suders' failure to take advantage of them.

The mixed decision had both sides claiming victory Monday.

"We're pleased," said Suders' attorney, Don Bailey of Harrisburg, Pa. "We're back in federal district court. We'll get a chance to present our case to a jury."

Acting Attorney General Jerry Pappert said the court acted in the state's interests. "This is a precedent-setting decision that will ensure fairness in the workplace for both employees and employers," Pappert said. "Employers who create the proper procedures for handling inappropriate behavior will not be punished if an employee refuses to use those procedures." Read more

My additional thoughts are to point out that even where there has been a tangible employment action such as a demotion or reduction in pay, coupled with an alleged constructive discharge/resignation, there are defenses available to the employer.

First, that the harassing conduct did not occur as alleged and/or was not sufficiently severe or pervasive or otherwise did not meet the standard for unlawful harassment.

Second, that the tangible employment action was unrelated to the alleged harassing conduct, having been undertaken for legitimate, nondiscriminatory reasons and/or by persons other than the alleged harasser (yes, another reason for independent review of major employment decisions).

Uncensored Version of National Labor Relations Board "10(j) Manual"

I can't remember how or why in my Web surfing I ran across this, from a web site called The Memory Hole, but some readers may find it interesting: "Uncensored Version of National Labor Relations Board 10(j) Manual"

The linked page explains that section 10(j) is:

The Section of the NLRA which empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending the full review of the case by the Board.

There is a link to a .pdf file that may be viewed or downloaded.

If this interests you, I would recommend downloading, as you never know when it might vanish into . . . the memory hole.

Update on DNC union snafu in Boston

BostonHerald.com (AP) reported Monday: "Police union, city break off talks; will resume Wednesday"

This is an update on the story I reported on earlier under the title "Will the Democratic party still respect Big Labor the morning after Labor screws up the convention?"

A marathon negotiating session between the city of Boston and the police union that picketed the FleetCenter last week broke off early Monday morning without an agreement . . .

Last week, the union's protests delayed a $14 million renovation of the FleetCenter to convert it from a sports arena to a convention hall . . . Each day that construction crews were unable to get into the FleetCenter to do their work . . . cost an estimated $100,000 in delays.

The picketing ended Friday after a federal judge sent U.S. marshals to the site to ensure that the union protesters were not blocking access to construction crews.

The police union . . . has had a history of supporting Republican presidential candidates . . . Read more

Ahaa . . . that last sentence explains a few things . . .

Supreme Court decides sexual harassment constructive discharge case

Today the Court released its opinion in Pennsylvania State Police v. Suders, No. 03-95 (June 14, 2004)

This is the case on the important question of whether a constructive discharge allegedly due to a hostile work environment precludes the employer from relying on the Faragher/Ellerth affirmative defense.

As I expected (and hoped), the Court held that a constructive discharge only has this effect "if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions."

The decision was virtually unanimous (only Thomas dissented, and there were no concurring opinions), which is always nice to see.

For an atmosphere of sexual harassment or hostility to be actionable, . . . the offending behavior "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." . . . A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. . . .

Like the harassment considered in our pathmarking decisions, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee's decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. . .

[W]hen an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis . . . calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. . . Absent "an official act of the enterprise," . . . as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records--a demotion or a reduction in compensation, for example--shows "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage. Read more

Thanks for the mention; how readers can thank me

Evan Schaeffer's highly informative and entertaining (?) Illinois Trial Practice Weblog has this kind mention of this blawg: "An Entertaining Discourse on Summary Judgment?" Thanks, Evan.

Meanwhile, "Internet Resources for Labor and Employment Lawyers" by Mark E. Steiner of the South Texas College of Law, prepared for the upcoming State Bar of Texas Labor and Employment Section Annual Meeting on June 25, 2004, lists this blawg under the heading "Basic Directories and Sites: Current Awareness." Thanks, Mark.

Now, if you like this Blawg, here's what you can do. Read it. Tell your friends and colleagues about it. Post a comment. Link to it.

But now there's more. Now, just like with NPR, you can contribute in the amount of your choice to support the wonderful free programming you enjoy.

In the right hand sidebar, you will notice I have added an "Amazon Honor System" "Click to Give" button. Just click to give.

I am contemplating adding some suggested Amazon titles. Under their affiliates program, a modest commission would go my way if you bought a book I listed.

No illusions this will make enough to allow me to do this full time or anything, but this is an experiment to see if a site like this can generate any revenue at all . . .

Reagan remembered, Part I: myth and reality

The Man (1988 photo)



The Myth (portrait in jellybeans)



The past week has been a great opportunity to remember a very significant historical period -- the Reagan years 1980-88. But there is a great deal of mythmaking going on, and one must look past the front page and TV sound bites to get a properly nuanced view of the eight Reagan years and their successes and failures. This is more important for those Americans most vulnerable to the mythology: those with no independent personal recall of that time.

I had just graduated from college and started law school when Reagan was elected in 1980, and have always been a bit of a newshound, though no political activist, so I remember well the major events of that era. I realize that unfortunately a significant number of today's adult Americans do not recall with any accuracy the reality of all eight of the Reagan years, simply being too young (e.g., a 30-year-old today would have been just 6 in 1980 and 14 in 1988; my 16 year old daughter was born in 1988). I fear they will suck up all the oversimplification about this complex and important phase of recent history, and all the mythmaking about Reagan, and thus fail to draw appropriate lessons from it.

Accordingly, I present herein, in three parts, some of the articles I read this week that I found helped provide a more rounded perspective on Reagan' presidency.

First, I liked this piece in Slate: "The Man, the Myths; Don't believe everything you hear about Ronald Reagan" (by David Greenberg)

Since Ronald Reagan's death, the media have [been] sugar-coating his life and career rather than grappling with his difficult legacy. Herewith, then, some myths about Reagan now being bruited about and why they don't do justice to the man's complexity.

Myth No. 1: Reagan, the "Great Communicator," owed his success mainly to his facility with television and public relations. . . The myth . . . comforted Reagan's liberal opponents, who could reassure themselves that the public didn't really support his conservative policies and had simply been duped by Hollywood showmanship. Reagan, however, promised—and largely delivered—substantive policies that a majority of the electorate . . . desired.

Myth No. 2: Reagan was a uniter, not a divider. Reagan's tenure is being depicted as a brief moment of national unity before the advent of today's strident partisanship. In fact, apart from Richard Nixon, it's hard to think of a more divisive president of the 20th century. . . . [T]he intense dislike that Reagan engendered rivaled the most feverish Clinton-hating or Bush-hating of later years. . . . [B]y stoking feelings of resentment on both left and right, Reagan did probably more than anyone to sow the social discord that so deeply divides our fifty-fifty nation.

Myth No. 3: Reagan was an incorrigible optimist. Or, as we've been hearing, his sunny disposition made him impossible to dislike. . . Reagan also mobilized his constituents with fear and resentment alongside his optimism. . . [M]any of his signature presidential actions, such as firing the air-traffic controllers in 1981, won admiration precisely because of their "meanness" — or, if you prefer, their "toughness." Reagan would never have succeeded without this strain of mercilessness to balance his genial side.

Myth No. 4: Reagan restored faith in government and the presidency. This claim is as bizarre as it is common in the recent Reagan encomiums . . . That candidates of both parties now routinely run against Washington further shows that it is an enduring cynicism toward government and politicians, not a renewed faith in them, that has been central to Reagan's legacy.

Myth No. 5: Reagan's get-tough policy with the Soviet Union brought about the end of the Cold War. Historians will be debating this one for some time . . . Reagan does deserve credit for bringing U.S.-Soviet hostilities to a close, but not for the simplistic reasons usually cited. Read more

Even in the midst of the profusion of kind words one expects with any death, the deep divisions of the Reagan era are echoing. It is too bad the younger voters don't have that same sense of deja vue I have -- and I suspect many other older voters on both sides of the fence have -- so much of what is being said negatively about Bush today parallels what was said about Reagan.

CNN.com collected emails showing an assortment of views: "Reagan's passing elicits strong responses"

Note how most responses are either strongly pro or con; only one is really balanced.

I loved this perpective from The Guardian: "Mourning becomes electorate; Reagan was the arch-villain for New York liberals, but they aren't now lining up to dance on his grave" (by Ben Smith)

When I was a child on New York's Upper West Side, Ronald Reagan was a face on posters around the neighborhood. The background was black, his eyes were red, and atop his head was a set of horns. . . Reagan won in a landslide, which was confusing for a four-year old, since my family knew no one who admitted to voting for him. . .

That demonic image of the president on the local walls, which must have surfaced during his second term, could have been inspired by any of a dozen issues, or all of them. . .

When Reagan died on Saturday, I half expected to see my old neighbors dancing in the streets, singing "Ding, Dong the Witch is Dead." But the mood was simply quiet. . . The publications West Siders write for, such as Newsweek and Time and the New York Times, were plastered with respectful obituaries, and only respectful notes of dissent. . .

Now New York has turned its ire on another president, another idiot and cowboy. On the West Side, the locals are assuring themselves that George W. Bush is the worst yet, the worst ever. . . The uniform, seething hatred for Bush returns me immediately to my 1980s childhood. Read more

It was interesting to see some others of my generation describing having come to a more charitable perspective on Reagan as time passed and the greatness of his greatest achievements eclipsed all the controversy over lesser (or other) matters. Personally, by 1984 I had become a "Reagan Democrat," voting Republican the first time of the three presidential elections in which I had by then been elegible to vote.

In this regard, fellow St. Louis blawger Dennis Kennedy wrote these word with which I agree totally: Dennis Kennedy: "Ronald Reagan, Rest in Peace"

It surprises many of my friends that I'm a Reagan fan, but I came to that later in life . . .

When I grew up in the 1960s and 1970s, there was a constant, nagging fear of nuclear war. I remember walking across the campus shortly after I turned 21 and thinking, "I guess I'm going to have to decide what to do after I graduate - I really thought they would have blown everything up by now." I think surveys from that time show that my view was not uncommon.

It's hard to underestimate the relief that came as we gradually realized that the Cold War was indeed over and the threat of nuclear annihilation had left us as a daily concern. Read more

In a similar vein, but more detail, is this in Business Week Online: "The Simple Truth About Ronald Reagan; It took a while, but I finally realized the Gipper was a lot smarter than the folks who derided him. Folks like me" (by Roger Franklin)

It was Reagan who first drew me to the States, when he was running against Jimmy Carter in 1980, and the Australian paper I worked for at the time wanted news stories and features on the conventions and political carnivals of an American election year. They were duly sent back to Sydney, none very flattering.

That Reagan was a twit went without saying, but I said it anyway, and with some vitriol. . .

But years later, the author's son, at 11, understood from hindsight the positive achievements that ended up as the Reagan legacy:

Turns out, the kid was smarter than his old man, and he really had been paying attention when I'd answered those questions about why Russia wasn't the Soviet Union anymore, and what about this vanished Berlin Wall that they were talking about on TV? My son must have been listening, too, when his American mother reminisced about how, when she was his age, her family stocked the basement with tinned goods and a chamber pot to see them through the storm of nuclear fallout.

Those threats were gone because the Soviet Union was gone -- and it was Ronald Reagan who made it so. My son will never have to master the duck-and-cover, and for that his mother and I are grateful. . .

In his innocence, my son was right. I did like Ronald Reagan, even if I didn't know it at the time. So here's a toast to a simple man who had the wit to ignore his betters and leave the world, all things considered, a finer, safer place than he found it.

Another younger perspective is expressed well in American Daily: "Reagan And Generation Next" (by Hans Zeiger)

[T]he approximately 30 million Americans born between 1981 and 1988 are “Reagan’s Children.” . . We would thus be a decent generation to consider ourselves Reagan’s Children. It is not merely for the time he spent in office during which so many of us were born, myself included, that we should associate our generation with the name of President Reagan. It is also because this generation is notably reflective of Reagan’s conservatism, as well as his optimism. . .

[T]here is a strong and vital corps of young Americans who are committed to the simple, permanent things, the things of the spirit that define the American character. These are Reagan’s Children who will keep America going. . . [Many are now fighting proudly and loyally and bravely in Afghanistan and Iraq]

Reagan’s Children are more conservative than any generation since statistics were available. . . 31 percent of college students identify as Republicans, compared to 28 percent who are Democrats. And . . . an all-time high 21 percent say they are conservative. . .

Some more interesting retrospectives:

Business Week Online: "Reagan's Economic Legacy; His policies helped spur the 1990s boom and were integral to the high-tech revolution. But the poor paid a price" (by Michael J. Mandel)

On Aug. 13, 1981, President Ronald Reagan signed the legislation that defined his vision for the U.S. economy. . . Just the previous day, with far less attention and fanfare, IBM announced the introduction of its first personal computer, the IBM PC. Powered by a microprocessor from Intel, which then had revenues of less than $1 billion, and sporting an operating system by a virtually unknown company called Microsoft, the IBM PC, and the machines that followed, took the country by storm.

In a way that few have realized, Reagan's economic legacy is inextricably interwoven with the Information Revolution that the IBM PC helped kick off. . . .

In the end, there may be no way to tell just how much Reaganomics helped create and foster the environment that has led to today's tech-driven, high-productivity economy. But ultimately, his economic policies -- and more important, his message of optimism about the future -- were the right way to go in an increasingly global and tech-driven world. Read more

And a liberal perspective from the Nation reminds us again of the passion against Reagan that continued throughout his presidency: "Reagan's Politics of Passion" (by John Nichols)

While no one should begrudge Reagan's admirers this opportunity to replay those "morning in America" commercials that were deployed with such success during the last of their man's four runs for the presidency, it is a bit embarrassing to watch pundits and pols who know better embracing the spin.

The problem with all this hero worship is that the spin underestimates and mischaracterizes Reagan. It reduces a complex and controversial man to a blurry icon with few of the rough edges that made him one of the most remarkable political figures of his time.

That he was remarkable does not mean that he was right. Most of what Reagan did during two terms as governor of California and two terms as president can most charitably be described as "misguided." Aside from his support for abortion rights during his governorship, and his opposition to anti-gay initiatives in California during the late 1970s, Reagan displayed an amazing ability to place himself on the wrong side of the issues--and of history.

Yet, there is something that liberals can--and should--learn from Reagan.

Ronald Reagan was a master politician who understood how to package rightwing ideas in appealing enough forms to get himself elected and, sometimes, to implement his programs. . . Throughout his career, Reagan benefitted from the penchant of Americans to embrace politicians who seem to be at ease with their ideology. This sense that true believers are genuine creates confidence in citizens, lending itself to lines like, "Even if you disagree with him, you know where he stands." And such lines translate on election day into votes that frequently cross ideological and partisan lines.

The lack of such a sense about John Kerry is precisely what will be his downfall if he loses -- that and measurable Bush success at home and abroad between now and November -- success suggesting that true believers like Reagan and Bush get things done.

St. Louis Post-Dispatch: "Remembering Reagan: Praise from his harshest critics amounts to hypocrisy" (by Charles Krauthammer, Washington Post Writers Group)

National Review Online: "A Lesson in Backbone; Reagan stood fast against deformations of the liberal spirit" (by Stanley Kurtz)

Fast Company now: "Reagan Redux"

And then there were the unambiguously negative, refusing to tone it down in the face of the man's death and the vocal majority's overwhelming gratitude. As if years of Alzheimer's hell were not punishment enough for whatever his sins, they picket with signs suggesting he's burning in eternal hell (doubt any of them believe in God, heaven or hell). This article speaks for them: "Reagan's Shameful Legacy; Mourn for Us, Not the Proto-Bush":

Reagan remembered, Part II: impact on the courts

At a 1986 news conference, President Reagan notes Chief Justice Warren Burger's retirement and William Rehnquist's nomination (Image: AP/Wide World Photos)

Fishing through the recent flood of Reagan remembrances, I found a few interesting ones on the Reagan legacy to the courts and justice system.

Findlaw columnist and Columbia University law professor Michael C. Dorf offers his view: "Reagan and the Courts: A Sober Assessment"

After making clear he is one of the "many . . . Americans who disagreed with Reagan's policies as President," Dorf continues:

After canvassing Reagan's appointees, I conclude that, sadly, the most profound impact of the judges Reagan appointed was to reduce the role played in the law by the compassion for individuals that so many people admired in Reagan himself. . .

If one is keeping score strictly on the political spectrum, Reagan's Supreme Court appointments appear to be evenly divided between moderate conservatives O'Connor and Kennedy, on the one hand, and deep conservatives Rehnquist and Scalia, on the other. But the scorecard is actually more moderate, because Reagan did not name Rehnquist to the high court. He simply moved Rehnquist into the Chief's seat . . .

So the real score for Reagan, when it comes to the Supreme Court, is two moderate conservatives and one deep conservative. . .

Reagan's impact on the lower federal courts was more clearly one-sided than his impact on the Supreme Court. . . The run of judges appointed by President Reagan . . . have followed a distressing pattern. . . . [W]here possible, they take a stingy view of the rights the law affords people. Read more

Similarly, but without the whining bleeding heart, CNN.com reports: "Reagan's Supreme Court choices steer conservative path"

Reagan's most cheered choice was that of . . . Sandra Day O'Connor, as the first woman on the Supreme Court. Reagan also picked the court's leader, making then-Justice William H. Rehnquist the nation's 16th chief justice. . . His other Supreme Court justices were Antonin Scalia and Anthony M. Kennedy.

The four have voted together in a series of cases, decided by 5-4 votes, that found Congress overstepped its authority in passing some civil rights and other laws. The states' rights cases are considered the hallmark of the conservative bent under Rehnquist.

"That is Ronald Reagan's hand on the Supreme Court every day," Stephen Wermiel, an American University law professor who follows the court, said . . .

O'Connor and Kennedy have disappointed some conservatives with their often moderate positions. The Reagan justices are key swing votes and side with the court liberals sometimes in affirmative action, abortion and death penalty cases.

"Would he have been totally pleased with all four? Probably not," said Nicole Garnett, a Notre Dame law professor and former clerk at the Supreme Court. "He would have wanted more Rehnquists. Maybe Scalias." Read more

Tony Mauro writes in Legal Times: "Reagan's Legacy: A Transformed Judiciary"

[M]ost of the 372 life-tenured judges he appointed are still on the bench.

"He took the confirmation process to a whole new dimension, to the level of a political campaign," says Charles Cooper, a partner in Washington, D.C.'s Cooper & Kirk and a key aide in Reagan's Justice Department. Apart from Reagan's role in defusing the Cold War, Cooper says, "The most valuable and lasting contribution of his presidency will be the legacy of his appointments to the federal bench."

Cooper and others last week recalled the war-room-like intensity of the Justice Department's team of lawyers who focused on judicial nominations . . .

"It was a really groundbreaking approach. No other president approached that level of research and fine-tuning. It is a real testament to just how important nominations were to the Reagan presidency."

Where did Reagan's own passion for recasting the judiciary originate? Most historians point to his previous tenure as California governor. "He presided over a state, many of whose institutions were effectively being run by federal judges -- the prisons, the schools," . . .

[Following interesting discussion of several appointments, including the unsuccessful Bork Supreme Court nomination:] The fact that Kennedy has wielded a vote on the Court for the last 16 years instead of Bork has undoubtedly had profound consequences in areas of the law ranging from abortion to affirmative action. And O'Connor's frequent role as a moderating swing vote was not what Reagan envisioned.

But Kmiec, for one, thinks Reagan would still be proud of his Supreme Court picks. "He would have disagreed with some of their decisions, but I think he would have respected their reasoning."

[T]heir occasional deviation from conservative orthodoxy does not detract from the power of Reagan's judicial record. . . "Faithfulness to the original understanding of the Constitution is now an acceptable methodology, as is a reaffirmation of federalism and separation of powers," . . . "President Reagan turned a system dominated by party courtesy and patronage into a systematic process that was an extension of his policies." Read more

Finally, this from Gerald Shargel in Slate: "No Mercy; Ronald Reagan's tough legal legacy," discussing Reagan's impact on criminal justice, particularly "the most sweeping judicial innovation of the Reagan era, . . . the 1984 Sentencing Reform Act, implementing the much maligned Federal Sentencing Guidelines." Read more

Certainly, there have been many important labor and employment law developments impacted significantly by Reagan appointees, and particularly his Supreme Court appointees.

I would particularly note the 1989 series of Supreme Court decisions that led to the passage of the Civil Rights Act of 1991-- a relatively rare instance of Congress legislating to directly overrule via statutory amendment the Supreme Court's statutory interpretation -- and the ADA decisions that have restricted the definition of "disability."

Reagan remembered, Part III: impact on labor relations

The impact of Reagan's handling of the 1981 PATCO strike on the labor movement was similar to that of Reagan's foreign policy on the Soviet Union: a tough, aggressive position paid off where the adversary was in reality much weaker than it appeared to be. And some observers believe the toughness he showed with PATCO made an impact on the Soviets as well.

StocksandNews.com has this story from a few years back: "In Honor of Ronald Reagan" (by Brian Trumbore)

In honor of Ronald Reagan's 90th birthday, I thought I'd do a story on his handling of the air traffic controllers union . . . [I]t . . . was a historic moment in the annals of labor unions and Reagan set the tone for a generation of management-labor issues, the vast majority of which were settled peaceably and for the good of the U.S. economy. . . .

[O]n August 3, 1981, 13,000 of the 17,000 controllers went on strike. PATCO's members were in total defiance of federal law as there was a ban on strikes by government employees. In fact, each PATCO member had taken an oath not to strike when they were first hired. It was Reagan time. . .

In his meetings with advisers, Reagan quoted Coolidge, "There is no right to strike against the public safety by anybody, anywhere, any time." With the backing of transportation secretary Drew Lewis, Reagan gave the controllers just 48 hours to return to work. 48 hours later most of them were fired. Reagan observed in his memoirs that his action "convinced people who might have thought otherwise that I meant what I said." Just as importantly, on a far bigger stage, Reagan's decision also helped show the Soviets that he was a decisive, no-nonsense leader. . .

[T]he president adopted this stern course of action without consulting any polls. Yet, much to the surprise of many on his staff . . . the American people supported him because they were convinced that principle mattered, especially in the face of threats and intimidation. . . By this one incident, which set the tone for the whole presidency, "Reagan proved that the right thing to do can also be politically advantageous."

The American labor movement had suffered its worst defeat in decades and the balance of power in labor disputes shifted towards management. Read more

In History News Network: "The Anniversary Everybody Forgets" (by Joseph A. McCartin), the author blames the PATCO strike and weakening of the unions for the fact that "today we live in a society of greater inequality than Americans inhabited twenty years ago." The connection, he says, is that "President Reagan's unprecedented act of union-busting critically weakened the one entity best equipped to combat growing income inequality in the United States: organized labor."

I'm personally more concerned about equality of opportunity, not equality of results, and the living standard of the poor, not the gap between rich and poor. I think we all benefited, though some obviously more than others, from the low-inflation, high-growth boom years of the '80's and '90's.

I do agree with the author on this, however:

Reagan's response to PATCO broke a decades-old taboo in American industrial relations. Although the courts had long interpreted the 1935 Wagner Act as allowing the permanent replacement of strikers, few employers had exercised this option before 1981. Flagrant union busting was widely viewed as unethical and un-American. Reagan changed that. . .

The smashing of the PATCO strike marked the moment when workers lost the ability to wield their most potent weapon: the strike. Between 1947 and 1980, the United States averaged 300 major strikes annually. But since 1981 the average has been only 47.

I see the drop in strikes as very positive. Too often, labor had used the strike weapon, often accompanied by nasty violence and intimidation, to coerce employers into paying employees substantially more than they were worth on an open market. Such conditions cannot last, and are inflationary. And of course strikes are extremely disruptive.

For good background on the PATCO strike, see this: "The Air Traffic Controllers' Strike"

And for an interesting perspective from the other side, blaming PATCO's fellow unionists for lack of solidarity, see Socialist Worker Online: "When air traffic controllers took on Ronald Reagan; Lessons of PATCO"

My entire career in labor and employment law has taken place against the background of the weakened labor movement blamed on the PATCO strike. As with the myth of Reagan's role in ending the Cold War, giving him all the credit for labor's woes is an oversimplification. In any event, generally speaking we have not seen the bitter labor conflicts of the past, and many unions are much more reluctant to strike than they were before the 1980s. As with so many of Reagan's domestic policies, what you think of this depends on how you are affected personally, as well as your political leanings. It is certainly not all bad.

New unemployment claims report shows increase last week

CNN/Money reports: "Jobless claims in surprise increase"

The Labor Department report showed 352,000 filed for first-time benefits in the week ended June 5, compared with a revised 340,000 the previous week. . .

The latest reading increased the closely watched moving average to 346,000, up 4,750 from the previous week's revised average of 341,250. The most recent reading is the highest weekly total in seven weeks. . . Read more

Will improved job market lead to undesired increase in turnover?

Both of the following articles address the growing concern over this issue as the "jobless recovery" transforms into a "jobs recovery."

First, from CNN/Money: "Exodus of the job-hoppers? Predictions of high turnover rates on the job haven't come true ... yet anyway" (by Jeanne Sahadi)

Back in 2003, various surveys predicted that as soon as the labor market improved, a high percentage of employees would be rushing the exits to find new jobs. . .

Well, there have been some promising signs of improvement on the jobs front lately. . . So, are workers singing a collective refrain of "Take this job and shove it?" Not exactly, or at least not yet. But there is anecdotal evidence to suggest that employees have started to sniff around for new opportunities. . .

[R]easons for wanting to leaving a job are usually stated as money and benefits. But underlying that message . . . is exhaustion and a feeling of being underappreciated. Read more

Also cited is the desire for "more work-life balance."

The second piece is from The Business Journal of Milwaukee: "Closing the revolving door; Economic recovery is not the time to lose key employees" (by Becca Mader)

Employers may feel that the sluggish economy of recent years has given them a pass from worries about employee turnover. When unemployment is high, unhappy employees are less likely to look -- or find -- a new job. But with the economy in recovery and the number of available jobs growing in certain sectors, employers still unconcerned about turnover may soon get a rude awakening.

"The irony is that, at the very time employers need their people because business is improving, they may begin to see their ranks thin because people are walking out the door," . . . "This is the very worst time for employers to spend their resources to fill those holes." . .

Human resource advisers said many employers do not have an accurate understanding of the potential cost of turnover at their businesses. Typically, they don't even think about it until the employee leaves. Once companies conduct a cost analysis in advance, however, they will have a better sense for how much and how to invest in order to keep their employees, human resource experts said. . . The money companies save on turnover can be applied toward retaining employees. After calculating the costs, companies then can figure out which positions are the most costly to lose, and therefore more valuable. . . From there, employers can concentrate on retention strategies, especially within the first few years. Read more

The labor market may be in a state of rapid transformation, with significantly increased demand, particularly in certain sectors and geographical regions. This is a time for employers to watch trends carefully and work to keep compensation competitive and valuable employees happy -- or risk losing them.

Various sexual harassment items

My backlogged items include several relating to sexual harassment, so I'm combining them here.

I have always felt it was appropriate -- and important -- for employers to enforce reasonable dress codes as a means of sexual harassment prevention.

I've said this at many a seminar, always expecting someone to call me a male chauvinist and assert that women should be able to wear whatever they want without being harassed.

My response would be that in an ideal world this might be true, but I've seen too many cases involving crude remarks and behavior clearly inspired by unnecessarily revealing clothing, and see this as a practical step that should be taken.

So I was delighted to read the following story from KRNV in Reno: "Sexual harassment expert approves of high school dress codes"

Inappropriate dress has resulted in the suspension of nearly 100 students at Sparks schools this year and now a professional is telling parents just how serious breaking the dress code can be.

Peggy Weeks is a national trainer on sexual harassment. Weeks says she approves of Reed High's approach. "Reed has a really good approach, they say appropriate dress for the place, and that's what they're working toward."

Weeks speaks all over the country on sexual harassment and attire. . . [S]he's talking to parents and students . . . telling them strict dress codes are actually needed by law. "Stopping sexual harassment is a legal obligation of the school and a piece of it is what people wear." . .

[She says:] "If children aren't busy with trying to de-pants each other, busy trying to pinch each other, making some kind of a comment about what somebody's wearing they might be trying to concentrate on learning." . . .

The facts of innumerable litigated sexual harassment cases make clear the above applies equally to adults in the workplace, who need to concentrate on working.

Speaking of "trying to de-pants each other," such conduct involving a 21-year-old male and a teenage girl was one of the many unfortunate allegations in a case recently decided by the 11th Circuit Court of Appeals, Hulsey v. Pride Restaurants, (11th Cir. 4/27/04) The conduct, culminating in the teenage plaintiff's termination by the assistant manager who harassed her, was summarized as follows:

[The manager's] conduct was frequent, occurring at least 18 times during the approximately 2 to 2-1/2 weeks between his initial attempt to get Hulsey to date him and her termination on August 16, 2001. His conduct was severe, involving many direct as well as indirect propositions for sex. It included following her into the restroom, and repeated attempts to touch her breasts, place his hands down her pants, and pull off her pants. It included enlisting the assistance of others to hold her while he attempted to grope her. Read more

Folks, this stuff goes on when you put a 21 year old male in charge of female teenage employees at a fast food restaurant and give him the authority to terminate. There is absolutely no reason a guy like this-- or any first level supervisor -- should have such authority.

The termination prevented the employer from being able to successfully raise the affirmative defense to supervisory harassment. The defense would have been well supported by the facts, since the plaintiff made no complaint until after she had been fired.

Speaking of sexual-harassment at Burger King, AP (via the Insurance Journal) reported in late April (I'm late again!) on a different case: Burger King Facing Sex Harassment Charges

A sexual harassment lawsuit against Carrols Corp. has grown from one accuser six years ago to 511 current and former Burger King workers in 13 states. Officials at Syracuse, N.Y.-based Carrols say the large number of accusers is a result of the U.S. Equal Employment Opportunity Commission going on a "fishing expedition" with solicitation letters to as many as 175,000 former workers. . . .

The EEOC's lawsuit against Carrols is the largest sexual harassment case the agency has ever handled . . .

Sexual harassment claims at more than half of Carrols' 351 Burger King restaurants in 13 states have been filed with the EEOC from the period 1994 to 2002 . . .

Carrols officials say the number of claims is minuscule compared with the 250,000 people who worked at the restaurants over that period. . . The company fired at least 42 workers for sexual harassment during the time studied by the EEOC. . .

The numbers aren't as significant as the "quality'' of the claims, [the EEOC] said. 47 percent of the claims alleged jokes or gestures; 37 percent bumping or touching; 10 percent physical aggression, including the intentional contact of sexual organs; and 6.3 percent sexual advances.

I love this comment from a reader:

Have you every been in a fast food joint? If so, you would have noticed that they make very efficent use of space. One of these outcomes is bumping and touching while waiting on customers. How do I know. I have one of their Training Managers working for me. She said if bumping and touches while serving patrons is sexual harrashment, then all employees should be in the law suit.

Of course, that physical proximity creates opportunity that can readily be abused, as well as plenty of accidental contact. It's a tough situation.

As a reminder that the EEOC often settles sexual harassment cases for relatively small amounts, less than most plaintiffs expect, see this article from KATV (Little Rock): "Hospital Confirms Consent Decree in Sexual Harassment Case"

[The] hospital . . . will pay a nurse $43,500 in . . . a sexual harassment lawsuit. . .

The U.S. Equal Employment Commission . . . announced . . . that [the] U.S. District Judge . . . approved the consent decree . . .

The suit alleged [the nurse] and other women were subjected to unwanted sexual advances and touching . . . Read more

Finally, a case that should have been kicked out on summary judgment, but for some reason went to trial, resulting in a defense verdict (yes, it does happen), as reported in the Bismarck Tribune (AP): "Jury rejects woman's harassment claims"

A federal court jury has rejected the sexual harassment claims of a former . . . High School cook.

Jurors deliberated about two hours . . . The trial lasted seven days.

[The plaintiff claimed] the school's . . . principal . . . sexually harassed her for 12 years. . . She claimed [he] sexually harassed her about 100 times in the school's "wide-open" kitchen. Yet none of her co-workers, other school staff or students reported seeing inappropriate behavior . . . An independent investigator who interviewed [her] co-workers and other school employees found no evidence supporting [her] claims. . .

[The defense]said [she] was bitter about being suspended for 20 days for stealing food from the kitchen.

I'd say those facts support summary judgment based on the affirmative defense -- she failed to complain for 12 years, and when she did complain, an independent investigator was hired and performed a thorough investigation.

Value of HR technology

I'm making an effort to catch up on some backlogged stories. This one's been on my list since early May! But the topic's not untimely (although the original headline seems inappropriate).

The Business Journal of Portland had this story:"Technology gives privacy to employees" (by Mike Hayes)

Beyond the day-to-day tasks, HR must focus on key initiatives such as recruiting, employee satisfaction and retention, training and education, as well as other big-picture issues. . . [T]he best-performing companies . . . have HR working strategically toward the overall organizational objectives . . . To be competitive, corporate HR departments must move away from dealing with administrative tasks to become more of a strategic force. . . .

While technology is helping HR move toward being more strategic, the reality in most HR departments is that managers are rarely able to carve out enough time to adequately deal with these lofty issues. The reason? The majority of an HR manager's time is spent responding to employee questions -- as many as five hours of every eight-hour day, according to some studies. Time spent researching and reporting information can take days -- or even weeks -- since many departments rely on paper-based files to manage information. . .

The strategic HR department leverages technology to improve the way managers work by cutting administrative costs and providing a way for employees to help themselves by providing access to specific HR information. And, the ability to automate the HR department and deliver real value to a corporation isn't just for large companies. . .

Two trends that together promise increased employee satisfaction and HR productivity are the Health Insurance Portability and Accountability Act and Employee Self Service. One of the aspects of HIPAA provides a government mandate for all plan providers to support electronic enrollment via the HIPAA EDI data formats, providing a huge reduction in errors. ESS adds the ability for a company to help employees help themselves, performing tasks such as making benefit plan changes, updating personal information, and looking up vacation accruals, thereby allowing employees to complete tasks that were previously left up to HR. . .

When you look at the cost per administrative task, it's easy to see where the savings add up. For example, the cost for HR to make address changes manually is $10 versus $2 using ESS. Obtaining 401(k) statements costs $50 with manual methods, and just 60 cents automating the request. . . Read more

Those numbers strike me as being exaggerated, and the author does have a product to sell (he is a vice president at Ascentis Software Corp. of Bellevue, Wash.). Nonetheless, the vision seems to be a sound one.

Will the Democratic party still respect Big Labor the morning after Labor screws up the convention?

As usual, Democratic stalwarts are shamelessly running around with Big Labor, acting as if only Democrats know how to create jobs

Meanwhile, Big Labor is threatening the Democrats with mass picketing that I would challenge as both violative of state law and as unlawful secondary boycott activity under the National Labor Relations Act.

From the Herald-Standard (Fayette County, PA): "Jackson, labor leaders push for economic growth" (by Josh Krysak)

About 400 area residents, mostly members of the United Mine Workers of America, turned out Monday morning to rally for political change as the Rev. Jesse Jackson and labor leaders visited the district on the second leg of a four-day bus tour to promote economic growth.

The excursion, entitled "Reinvest in America: Put America Back to Work," which is focused on jobs, education and health care in the tri-state region, began Sunday with a rally in Pittsburgh and will conclude Wednesday in Ohio. . .

"There is something spiritual about this journey [gag me]," Jackson said. "We want to see walls come down. We need people who are working to vote their economic interest, not their racial fears." . . .

Jackson, dressed in navy blue worker-style clothes, said that the recent job growth across the country, about 275,000 in the last month alone, is not the jobs the tour hopes to bring back to America's working class. [check out the picture showing him literally wearing a blue collar, looking almost as foolish as George Bush in a military uniform] He said the new jobs created over the last year are primarily in low-paying labor jobs like restaurants and department store chains [as some of the items in this post indicate, this assertion is just plain wrong]. . .

At times the tour seemed more like a rally for Democratic Presidential Candidate John Kerry . . .

At one point, Ed Yankovich, local president of the UMWA, compared the bus tour to the storming of the beaches at Normandy and noted that one of the reasons the soldiers fought in that epic battle 60 years ago was to secure health care for future generations [see the reader comments at the bottom of the article on this outrageously absurd analogy]. . . . Read more

Meanwhile,in Boston, Big Labor is using the upcoming Democratic convention to flex their muscles and play hardball.

The Boston Globe reported yesterday: "No-strike deal rejected by council; Preparations for convention may be affected" (by Rick Klein)

The Greater Boston Labor Council last night rejected a project labor agreement with organizers of the Democratic National Convention, meaning that convention construction will begin at the FleetCenter today without a no-strike guarantee from the influential consortium of local unions.

The vote could convince more construction workers to honor the picket line planned for this morning at the FleetCenter, where more than 100 Boston police officers and their union allies are expected. . . .

Last night's labor council meeting pitted the public-employee unions, which are angry over the fact that they are still working without contracts, against several of the largest private-sector building trade unions, which are eager for convention business. A project labor agreement would have guaranteed that trade unions would not strike, but in a sign of solidarity with the public unions the pact was defeated on a voice vote . . . described as "overwhelming."

Meanwhile, in a sign of growing uneasiness in the Democratic Party, the chair of the Maine Democratic Party said that her state's 36 convention delegates would probably not cross a union picket line at the convention. . . . "We're a party that supports labor all the way," . . .

[C]ity negotiators said they deem an 11.9 percent wage increase over four years to be "appropriate and reasonable" . . . Read more

Apparently a few hours later yesterday, this article came out from the Associated Press (via Boston Herald.com): "Union protests lead to convention project delays"

Union pickets prevented construction from getting started Tuesday at the site of next month's Democratic National Convention, as hundreds of demonstrators surrounded the FleetCenter and North Station in a show of solidarity with the city's police union.

Faced with crossing the picket line, many subcontractors who were scheduled to report to work for day one of the FleetCenter's $14 million pre-convention overhaul turned back instead, including a fleet of moving trucks driven by Teamsters. . .

The Democratic mayor . . . said he's not going to cave in to the union's demands just to get work started on the convention site. . .

The delay in the FleetCenter's conversion from a sports arena to a convention center presents problems for DNC organizers, who may now be forced to hire nonunion workers - an unthinkable prospect for a Democratic Party built on a foundation of organized labor. . .

"It's an easy position," Jerry Leary, vice president of the International Brotherhood of Electrical Workers Local 2222. "This is what unionism is all about. Hopefully, it will show them that we're serious." . . . Read more

With friends like these, who needs enemies?

If you "support labor all the way" does that mean you give them whenever they want when they put a gun to your head in this fashion?

What would Ronald Reagan have done? (I am thinking about writing a post revisiting the PATCO strike in Reagan's memory)

If the project goes on with nonunion workers, as it should, the cozy relationship between organized labor and the Democratic Party may be irreparably damaged.

Who will suffer more if this occurs? I say Big Labor. I mean how many union members really vote the way they do because they're told to do so by union bosses? How many will start voting Republican if Democrats are perceived as union busters -- they already know Republicans are union busters?

Come on, DNC, tell 'em where to go . . . You have nothing to lose but your chains. . .

A coup for bloggers: Iraqi blog quoted by Wolfowitz

Today's Wall Street Journal op-ed has a massive piece by Wofowitz, of which I have only read the first paragraph so far. In that paragraph, he quotes an Iraqi blogger named Omar. I looked for the blog, and think this is it: Iraq The Model

Let's hear it for free speech in Iraq, and the power of our blogging medium to allow the voice of Iraqis to be heard directly, unfiltered through any news organization!

I love this post (if you have time, browse the massive list of comments, too)

Preventing employee embezzlement

This may seem more a subject for accounting than HR. But when employee embezzlement allegations result in termination, as they typically do, HR and employment counsel are left having to prove the case if challenged, so it is well to have awareness of this issue in both accounting and HR departments.

From the Dayton Business Journal: "Employee embezzlement can be prevented" (by Alan Duvall)

Let's face it, business owners just hate bookkeeping. As a result, owners tend to place excessive administrative responsibilities on bookkeepers and office managers. Unfortunately, employees often repay this trusting delegation by embezzling from the company. . .

Consistently in embezzlement situations, the business owner is presented with numerous trinkets of evidence that finances are not in line with reasonable expectations: . . . [see story]

[E]mbezzlement cases . . . generally look identical in terms of timing and amounts of fraudulent transactions. The employee initially dabbles in very small amounts at very interspersed times, and then dramatically increases both the amounts and numbers of transactions when they determine no one is noticing the cash shortfall.

To reduce the potential impact of employee embezzlement, business owners must institute layers of internal financial controls. The overall objective is to demonstrate to employees their work product is constantly under supervisory review and therefore it would take a virtual multi-person conspiracy to successfully embezzle from the company. Such controls should include the following safeguards: . . . [see story]

Embezzlement is not an aberration in the workplace. When I recently asked at one of my controls seminars how many businessmen in the audience had actually experienced employee fraud, more than two-thirds answered in the affirmative. Embezzlement remains a very real problem demanding constant and visible monitoring and controls. Read more

The risk may be greatest with smaller businesses that do not have cash handling as a major focus, as they are less likely to have established proper controls and safeguards (e.g., banks and retail have such focus; professional offices and service businesses do not). But even where a lot of cash is not involved, processing checks and other transactions and financial documentation creates potential dangers.