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Labor and Employment Law News - March 1999

Labor and the Law:
News and Current Events from the IRRA Section on Labor and Employment Law (LEL)

Death and Conviction

 

If employers are overly concerned about the possibility of being sued for giving out employment references, perhaps they are sufficiently worried about criminal liability for other actions. Work-related deaths can lead to employers’ facing criminal penalties. This trend is not limited to any one part of the country.

A Wisconsin grand jury recently recommended criminal charges against a company after one of its workers killed himself and another driver in a fatal crash after the work left a company Christmas party drunk. The grand jury recommended indicting the company with contributing to a homicide by intoxicated us of a vehicle, a crime which carries a maximum $10,000 fine. The company in this case not only hosted a party with free drink tickets, when a bartender tried to cut the employee off as too intoxicated, a manager intervened to permit him to continue drinking. The employee’s blood-alcohol level was .338 or the equivalent of consuming eighteen to twenty-four beers.

The most common scenario involves a fatal worker injury, particularly one involving violation of safety and health laws. There are many examples of such convictions for the one-year period prior to this newsletter. For example, on February 18, 1999, the Seventh Circuit affirmed a criminal fine of $1 million and five years probation for Pitt-Des Moines, a subcontractor working on Chicago’s main post office after its violation of two OSHA rules caused the death of two workers and the serious injury of five others. After a C&S Erectors’ employee fell to his death, OSHA charged the company with willful and serious violations totaling $396,000 and forwarded the case for prosecution. In Pennsylvania, on October 13, 1998, the owner, Roy Stoops was sentenced to four months in prison and to pay $6000 restitution to the family of the employee. C&S was sentenced to one year probation. Thomas Bowley pled guilty to misdemeanor assault and battery for the deaths of two employees of his company, Tewksbury Industries and was sentenced to three years probation and 400 hours community service. Bowley had been charged by the State of Massachusetts with manslaughter and faced twenty years in prison. The deaths resulted from the operation of equipment found to be in egregious violation of many OSHA standards.

What is disturbing in these and similar cases is the ease with which prudent workplace safety programs could have prevented the deaths. These indictments and convictions carry a clear message that failing to comply with public health and safety standards not only may mean an employer and its officers and managers face moral questions of their personal responsibility for a death but also may be called to account publically for their actions.

 

Research in Progress

 

 


Gary Minda, Brooklyn Law School, gminda2@brooklaw.edu

 

I'll be at Stetson University College of law until April and then off to Ireland to do research on a book about Michael Davitt and the Land League. Davitt and the Irish Land League helped to create a mass movement of working class people in Ireland, and as I hope to show, set the stage for advancing a modern labor movement.

My most recent book, "Boycott in America: How Imagination and Ideology Shape the Legal Mind" will be out any day now. The publisher is Southern Illinois University Press. The book tells the story of how a word, "boycott" came into our vocabulary and how that word signified different ideas about mass movements in American jurisprudence. The book draws from cognitive science to unpack the ideological meanings of the word.

 

 

Perry Zirkel, Iaccocco Professor of Education, Lehigh University - Mountaintop Campus and LEL Section Board Member, paz0@lehigh.edu

 

1) A student of mine and I recently analyzed a sample of approximately 250 published grievance arbitration awards from 1989-98 in the Kindergarten to Grade 12 education sector to determine whether selected case characteristics were significantly related to case outcome. Using simple chi-square analysis, we found statistical significance for single v. multiple grievants, attorney representation (Union doing better when neither side was represented), and issue category (arbitrability of the grievance v. arbitration on the merits for two categories -- contract interpretation and discipline). We found nonsignificance for the grievant's gender and grievant's status (e.g., teacher v. custodian).

These findings were generally the same for previous research in wider contexts with regard to single v. multiple grievants, grievants' gender, and issue category, but not for grievant's status and attorney representation. The most promising area for future research is attorney representation.

 

2. A recent article in the Journal of Collective Negotiations in the Public Sector (v. 24, pp. 383-91) by Rubin et al. raises the need to get an empirical handle on "creeping legalism in grievance arbitration." I envision a collaborative research project that obtained and analyzed longitudinal data on various operational measures of legalization, such as the extent that either or both sides have attorney representation, to determine whether the common perception of creeping legalism is correct and whether it is particularly pronounced in certain sectors or types of cases. I'd be interested in any methodological suggestions and possible collaborators.

 

Recent Labor Law Publications

 

Cynthia Bowman & Elizabeth Schneider, Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession, 67 Fordham L. Rev. 249 (1998)

 

Howard Chang, Migration as International Trade: The Economic Gains from the Liberalized Movement of Labor, 3 UCLA J. Int'l L. & Foreign Aff. 371 (1998‑99)

 


Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A Simplified Method for Assessing Evidence in Discrimination Cases, 64 Brook. L. Rev. 659 (1998)

 

Lauri Cohen, Comment: Free Labor in the Name of Workfare: New York's Reaction to the Brukhman v. Giuliani Decision, 64 Brook. L. Rev. 711 (1998)

 

Jeremy Colby, Note: An Analysis of Genetic Discrimination Legislation Proposed by the 105th Congress, 24 Am. J.L. & Med. 443 (1998)

 

Eugenio Cruz, Note: Unprotected Identities: Recognizing Cultural Ethnic Divergence in Interpreting Title VII's ‘National Origin’ Classification, 9 Hastings Women's L.J. 161 (1998)

 

Andrea Curcio, Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs from Embarrassing Exposure, 67 U. Cin. L. Rev. 125 (1998)

 

William Daughtrey & Donnie Kidd, Modifications Necessary for Commercial Arbitration Law to Protect Statutory Rights Against Discrimination in Employment: A Discussion and Proposals for Change, 14 Ohio St. J. on Disp. Resol. 29 (1998)

 

Larry Davie, Casenote: Boys Can No Longer Just Be Boys: Same-sex Sexual Harassment Perpetrated by Heterosexuals Found Actionable under Title VII, 23 S. Ill. U. L.J. 239 (1998)

 

Michael Delikat & Rene Kathawala, Arbitration of Employment Discrimination Claims under Pre‑dispute Agreements: Will Gilmer Survive? 16 Hofstra Lab. & Emp. L.J. 83 (1998)

 

Allen Dudley, Comment: Rights to Reasonable Accommodation under the Americans with Disabilities Act for "Regarded As" Disabled Individuals, 7 Geo. Mason L. Rev. 389 (1999)

 

Tami Earnhart, Note: Medicated Mental Impairments under the ADA: Diagnosing the Problem, Prescribing the Solution, 74 Ind. L.J. 251 (1998)

 

Shawna Eikenberry, Note: Thou Shalt Not Sue the Church: Denying Access to Ministerial Employees, 74 Ind. L.J. 269 (1998)

 

Wayne Estes & Kirsten Love, The Ubiquitous Yet Illusive "Merger" Clause in Labor Agreements: Semantics, Applications, and Effect on Past Practice, 87 Ky. L.J. 1 (1998‑99)

 

David Feller, Compulsory Arbitration of Statutory Discrimination Claims under a Collective Bargaining Agreement: The Odd Case of Caesar Wright, 16 Hofstra Lab. & Emp. L.J. 53 (1998)

 

Christina Floyd, Employment Law, 32 U. Rich. L. Rev. 1199 (1998)

 

Karen Geller, Case Note: The Interplay Between the Foreign Sovereign Immunities Act and ERISA: The Effects of Gates v. Victor Fine Foods, 29 U. Miami Inter-Am. L. Rev. 575 (1998)

 


Susan Gibson, Note: The Americans with Disabilities Act Protects Individuals with a History of Cancer from Employment Discrimination: Myth or Reality? 16 Hofstra Lab. & Emp. L.J. 167 (1998)

 

Maggie Gold, Comment: Must Insurers Treat All Illnesses Equally?-- Mental vs. Physical Illness: Congressional and Administrative Failure to End Limitations to and Exclusions from Coverage for Mental Illness in Employer-provided Health Benefits under the Mental Health Parity Act and the Americans with Disabilities Act, 4 Conn. Ins. L.J. 767 (1998)

 

David Greenhaus, Note: Should the NLRB Revisit Excelsior? 16 Hofstra Lab. & Emp. L.J. 259 (1998)

 

Lani Guinier, Lessons and Challenges of Becoming Gentlemen, 24 N.Y.U. Rev. L. & Soc. Change 1 (1998)

 

David Hawley, Note: “Standing” up for Minority Coworkers? White Males Do Not Have “Aggrieved Person” Standing for Hostile Environment Actions, 77 N.C. L. Rev. 865 (1999)

 

Robert Henley, Student Survey: Employment.  75 Denv. U. L. Rev. 829 (1998)

 

Ran Hirschl, Israel's ‘Constitutional Revolution’: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo‑liberal Economic Order, 46 Am. J. Comp. L. 427 (1998)

 

Diane Jeffers, Case Comment: Professional Responsibility ‑‑ Questions on Rhode Island Bar Applicaton Violate Americans with Disabilities Act, 31 Suffolk U. L. Rev. 779 (1998)

 

Sara Krausert, Comment: From Baking Bread to Making Dough: Legal and Societal Restrictions on the Employment of First Ladies, 5 U. Chi. L. Sch. Roundtable 243 (1998)

 

Lynne Longtin, Comment: The EEOC's Position on Mandatory Arbitration, 67 U. Cin. L. Rev. 265 (1998)

 

Sharon Margalioth, The Significance of Worker Attitudes: Individualism as a Cause for Labor's Decline, 16 Hofstra Lab. & Emp. L.J. 133 (1998)

 

Peter Marksteiner, How Confidential Are Federal Sector Employment‑related Dispute Mediations? 14 Ohio St. J. on Disp. Resol. 89 (1998)

 

Cassandra Mott, Note: Macy's Miracle on 34th Street: Employing Mediation to Develop the Reorganization Plan in a Mega‑Chapter 11 Case, 14 Ohio St. J. on Disp. Resol. 193 (1998)

 

Craig Nichols, Work-related Mental Injuries: Minnesota's Compensability Standards, 22 Hamline L. Rev. 259 (1998)

 

Daniel Nimtz, Student Survey: ERISA, 75 Denv. U. L. Rev. 891 (1998)


Brian Pfeiffer, Note: Jurisdictional Restraints on the Federal Labor Relations Authority: A Split in the Circuits, 16 Hofstra Lab. & Emp. L.J. 201 (1998)

 

Norman Poser, Judicial review of Arbitration Awards: Manifest Disregard of the Law, 64 Brook. L. Rev. 471 (1998)

 

Michael Puma, Note: Respecting the Plain Language of the ADA: A Textualist Argument Rejecting the EEOC's Analysis of Controlled Disabilities, 67 Geo. Wash. L. Rev. 123 (1998)

 

Mark Rothstein, Protecting Genetic Privacy by Permitting Employer Access Only to Job‑related Employee Medical Information: Analysis of a Unique Minnesota Law, 24 Am. J.L. & Med. 399 (1998)

 

Shilee Roumph, Casenote: What is an "Accident"?  Winn v. Geo. A. Hormel & Co. and the Worker's Compensation Act, 32 Creighton L. Rev. 669 (1998)

 

Peter Rubin, Equal Rights, Special Rights, and the Nature of Antidiscrimination Law, 97 Mich. L. Rev. 564 (1998)

 

Judy Scales‑Trent, African Women in France: Immigration, Family and Work, 24 Brook. J. Int'l L. 705 (1999)

 

Kurt Schaub, Note: The "Substantially Younger" Requirement in O'Connor v. Consolidated Coin Caterers Corp.: Will ADEA Plaintiffs Lose Again?  16 Hofstra Lab. & Emp. L.J. 225 (1998)

 

Donna Shestowsky, Note: Where is the Common Knowledge? Empirical Support for Requiring Expert Testimony in Sexual Harassment Trials, 51 Stan. L. Rev. 357 (1999)

 

Jeffrey Shuren, Legal Accountability for Utilization Review in ERISA Health Plans, 77 N.C. L. Rev. 731 (1999)

 

Deborah Stein, Note: Keep off the Grass: Prohibiting Nonemployee Union Access Without Discriminating, 73 N.Y.U. L. Rev. 2029 (1998)

 

Scott Sundstrom, Note: You've Got Mail! (And the Government Knows It): Applying the Fourth Amendment to Workplace E‑mail Monitoring, 73 N.Y.U. L. Rev. 2064 (1998)

 

Ryan Toftoy, Note: Now Playing: Corporate Codes of Conduct in the Global Theater. Is Nike Just Doing It? 15 Ariz. J. Int’l & Comp. L. 905 (1998)

 

Victor Van Bourg & Ellyn Moscowitz, Salting the Mines: The Legal and Political Implications of Placing Paid Union Organizers in the Employer's Workplace, 16 Hofstra Lab. & Emp. L.J. 1 (1998)

 


Maureen Walsh, Note: What Constitutes a "Disability" under the Americans with Disabilities Act: Should Courts Consider Mitigating Measures? 55 Wash. & Lee L. Rev. 917 (1998)

 

Angela Whitehead, Note: Rejecting Organs: The Organ Allocation Process and the Americans with Disabilities Act, 24 Am. J.L. & Med. 481 (1998)

 

Joanne Wisner, Comment: Asymptomatic HIV Disease as a Disability under the Americans with Disabilities Act, 33 New Eng. L. Rev. 217 (1998)

 

Marc Yoskowitz, Note: A Confluence of Labor and Antitrust Law: The Possibility of Union Decertification in the National Basketball Association to Avoid the Bounds of Labor Law and Move into the Realm of Antitrust, 1998 Colum. Bus. L. Rev. 579 (1998).

 

Donald Zahn, Perversions of Preemption, 1998 Det. C.L. Mich. St. U. L. Rev. 175.

 

 

Future Newsletters

 

To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin (ejd@cwsl.edu) or California Western School of Law, 225 Cedar Street, San Diego, CA 92101 or (619) 525-1449 or fax: (619) 696-9999

 

The IRRA LEL Section Newsletter, Labor and the Law, is available via the IRRA discussion group (to subscribe send an email to listserver@relay.doit.wisc.edu, leave the subject line blank. In the message area write: subscribe IRRA <your full name>. Back issues can be viewed at: http://leraweb.org/newsletters/index.html