Wal-mart and Unions - The Canadian Story

Wal-mart's union problems north of the border have been well chronicled, but a good source is Canadian management side employment lawyer, Michael Fitzgibbon, whose post Wal-Mart Announces Closure of Jonquiere Store also has links to his earlier posts on the subject.

His comment, "the fight is probably just beginning," sounds right on the money to me.

Impact of Sexual Orientation On Your Paycheck

Professor Gely, from the Labor Prof Blog, has a link to an abstract of a recent study surveying more than 50,000 Californians who self-identified based on their sexual orientation and how that affected their earnings. Although I haven't read the article itself, the abstract seems to have some contradictory statements. This statement:

Apart from the well-documented marriage premium, the author finds no statistically or economically significant independent effect of a gay or lesbian sexual orientation on earnings.

Does not seem to square with this one:

Researchers using the 1988-96 General Social Survey (GSS) have found that behaviorally gay/bisexual men earn 15-30% less, and behaviorally lesbian/ bisexual women earn 20-30% more, than similar heterosexuals.

If the latter is true, in addition to seeming to disprove the first statement, it would be interesting to know why.

Another One for the "Judges Fly Too" File

Just a few days ago I mentioned here that you could frequently predict the outcome of an employment law suit in the aviation industry by thinking of which outcome would come down on the side of "most safety conscious." Today's case in point, a magistrate judge's determination summed up in this Springfield News-Leader headline, Ruling: Pilot was fired for bar visit, not religion.

The EEOC which brought the suit, alleged the firing of Shanif Hussein two days after 9/11 was because he was a Muslim and a backlash to the 9/11 attacks. Not according to the airline, Hussein was fired for violating its rule against pilots being in bars in uniform. Contemplating a flight with an inebriated pilot - that's an easy one.

"All I Wanted Was a Free Magazine"

But what the president of decorating company nearly got was a full blown relationship with a union, including an obligation to pay fringe benefits into a union fund. When it didn't and the Trustees sued, it didn't take the courts long to untangle the would be magazine reader from the union agreement.

Somehow a one page free membership application to the Chicago Painting and Decorating contractors Association ended up on the desk of the CEO and sole owner of LaCosta, Inc., a company that provides painting and janitorial services. Just above the signature line was the following:

I have read, understand, and agree to abide by the Constitution and By-Laws of the Chicago Council/PDCA and the Current Labor Management Agreement between Painter's District Council No. 14 and PDCA (copies available on request).

Although she didn't, if the owner of LaCosta had obtained those agreements before she faxed the application back, she would have found that she was delegating her bargaining rights to the Chicago PDCA.

Fortunately, all is well that ends well. Even though sued for failing to contribute to the Union pension plan, the Court ultimately found that the manner in which she came to sign the agreement "bordered on deception" and did not come close to meeting the standard of "unequivocal intention to be bound by group collective bargaining." Trustees of the Chicago Painters and Decorators Pension, Health and Welfare Funds v. LaCosta, Inc. (7th Cir. 2/10/05) [pdf]. Still a costly magazine subscription, that's for sure.

"Solely Because" In Bankruptcy Retaliation Proviso, Means Solely

This is a decision Justice Clarence Thomas, a great literalist, would love. When the statute says it is impermissible to fire an employee who has been a debtor "solely because" he has filed for bankruptcy and the employee's argument is that the statute should not be read literally, but should be read like Title VII, to require that it only be a substantial factor, guess who is going to win? Bet on the literal reading.

Which is exactly what the Court found in White v. Kentuckiana Livestock Market, Inc. (6th Cir. 2/9/05) [pdf]. Even though the employer fired an employee (and his wife who was also employed by the same employer) 3 days after they filed for bankruptcy, and even though the employer responded to the unemployment claim prominently mentioning the employee's bankruptcy, first the bankruptcy judge, then the district court and now the 6th Circuit were convinced that the plaintiff's offer to help the employer defraud on taxes, had also played a role in the decision. With something else a part of the decision, it could not have been "solely" based on their having filed bankruptcy, hence no violation.

Although here it was not fatal to the employer's defense, it is a good example of the importance of what is often the first response to the question why an employee was fired -- the unemployment claim. Many a defensible case has been made considerably more difficult (read more expensive as well) because of a hasty, not completely informed response to an unemployment claim.

Title VII Jury Instructions - 6th Circuit Weighs In On Role of Pretext

For a quick study on how much weight establishing pretext carries, review the competing instructions offered in Williams v. Eau Claire Public Schools (6th Cir. 2/10/05) [pdf].

The bottom line from the Court:

In sum, because William's proposed instructions do not inform the jury that in order to return a verdict in her favor it must not only find Eau Claire’s articulated reason false, but it must also believe Williams’s claim that Eau Claire was in fact motivated by considerations of gender, Williams’s instructions are not a correct statement of the law.

Never forget, the ultimate issue is -- has the plaintiff established intentional discrimination.

Arthur Andersen, Wins One, Finally

Prior to the spring of 2002 few things probably seemed more secure than a job at Arthur Andersen, one of the worlds largest and at the time most successful accounting firms. But the ill winds of Enron were blowing and soon were to bring not only it down, but Andersen as well For an abbreviated version of the facts that led to the endgame for AA, you can check out today's decision in Roquet v. Arthur Andersen, LLP (7th Cir. 2/9/05) [pdf].



The necessity for replaying those painful days was a WARN Act claim brought by employees who first received notice of lay-offs on April 8, 2002, approximately 3 weeks after the firm itself was indicted by the DOJ for its Enron related actions. The legality of that indictment will soon be determined by the Supreme Court, but the practical impact has long been felt. Still Andersen was able to salvage some pride today, and save a little coin for the creditors, as a divided 7th Circuit holds that Anderson could avail itself of an exception to the WARN Act for "business circumstances that were not reasonably foreseeable as of the time that the notice would have been required."



In a vigorous dissent, Judge Wood argues that the majority was, without saying so, holding that under this exception it was an all or nothing rule, if you did not have to give notice on the 60th day before the layoff, then no notice was required. Judge Wood would have required that it be given as soon as the loss was foreseeable, a date she would peg at 38 days before the notice was actually given (although she would have voted to remand the matter to the district court for a final determination.) The all or nothing rule she argues would be contrary to the rule in the 8th Circuit, as well as the 3rd and 5th.



I think Judge Wood is right as a matter of law, but loses this one on a factual basis as the Court majority believed that the date the notice was given was early enough under the circumstances.



While I am sure that those charged with making the decision on the WARN Act issue for Andersen are pleased that their judgment call (if in fact it was a conscious decision) was validated; for a company long gone, I doubt that there will be much in the way of rejoicing.