Posted by marykeating on December 31, 2010 under Court news | 
After languishing for eight months, the nominations of Magistrate Judge James K. Bredar and state court appellate Judge Ellen L. Hollander made it through the Senate confirmation process.
The Senate has been criticized in many quarters for its slow action on federal judges. Many nominations are virtually free of controversy, yet are held up together with nominations considered too liberal or too something else to certain Senators. These two judges are examples of nominations that everyone Federal judges have a large workload, and vacancies have a delaying effect on civil cases, since criminal defendants have a constitutional right to a speedy trial. It’s nice to have good news to end the year.
Posted by marykeating on December 30, 2010 under Economic situation, veterans' discrimination |
Despite protection from one of the strongest anti-discrimination laws (USERRA), veterans find their prospects of reemployment dimmer than the rest of the nation’s jobseekers. According to today’s Washington Post, unemployment rates for returning veterans have been higher than the national average since 2005. One obvious cause is the skills the veterans have acquired while serving in an overseas war. Unlike peacetime military service, the veterans spending time in Iraq or Afghanistan have not been honing computer or mechanical skills. They have been patrolling streets, dismantling bombs, protecting shorelines. Employers may worry about their stability when the government is famous for redeploying its troops with little notice, and the news has been full of veterans with post-traumatic stress disorder that the Veterans Administration downplays, and hence often fails to treat.
On the bright side, some of the unemployment numbers probably come from veterans attending school after their service, so their availability to the job market is limited.
Economists seem hopeful (not that they all can agree on one thing) that the prospects in 2011 are a little rosier. Somehow the recession seems to be receding, but job creation is either not happening, or it’s happening in other countries.
Posted by marykeating on December 24, 2010 under Government contractors, retaliation |
Although the lame duck Congress did a good amount of work before closing for the year, and the session, not everything passed. The Senate was unable to extend the protections for federal whistleblowers. On the evening of December 22, the bill was put on hold.
The major difference between the two versions of the bill related to the inclusion of employees in the intelligence community. Probably Wikileaks has something to do with it. On the other hand, some whistleblowers who have suffered for speaking out argue that the new law would remove some of their existing protections, and leaves too much discretion in the agencies that engaged in the too-friendly behavior with contractors.
Whistleblower protection in the federal government should draw broad support. The first law was enacted after the government discovered that contractors had charged for inferior supplies to the Union army, resulting in soldiers finding their boots falling apart or their food inedible. The False Claims Act has given an incentive to whistleblowers identifying fraud on the federal government, in the form of a percentage of the recovery that the government reclaims from the fraudulent contractor. It has anti-retaliation provisions as well.
There would seem to be little support for the opposition, other than from fraudulent contractors. Yet, obtaining an effective whistleblower protection has been difficult. In reality, many whistleblowers find themselves ostracized, threatened, fired, and otherwise mistreated for doing the right thing. Moreover, many were denied the protections of the law when they discovered the fraud during the course of their regular duties, or when the government believed that the information provided was already known.
If the House and Senate versions are reconciled in the new session, a stronger whistleblower law will improve the way government operates by forcing the higher-ups to listen to people who would stop waste and fraudulent practices.
Posted by marykeating on December 23, 2010 under Family responsibility, Pending legislation |
The President has instructed the Office of Personnel Management to develop policies to protect mothers who are breastfeeding their infants, and need time and space to pump during the day. Although the new health care law protects many hourly workers, see discussion here, the President wants all federal workers to get the protection.
While finding space may not always be easy for an employer, hence the limitation to larger employers, many employers may be pleased to find that productivity is not necessarily affected. During my own bouts of working and pumping, I found that I could at least read during these breaks. Many employees may have similar ways to use the time in some productive way with the use of audio podcasts, for example.
The policies are supposed to be announced as soon as they are ready. Since some federal agencies already have them in place, that theoretically should not take long.
Posted by marykeating on December 22, 2010 under Race-based discrimination |
Yesterday, the U.S. Equal Employment Opportunity Commission sued Kaplan Higher Education Inc. for race discrimination, based on its practice of using credit reports to winnow out job applicants. The EEOC filed a class action suit in federal court in Ohio, alleging that the credit report use is more likely to single out African-American candidates.
As with job testing, employers need to be careful to tailor their screening requirements to the needs of the job. Courts are more likely to accept a bank’s argument that people with poor credit histories might pose a risk of embezzlement than the same argument from a schoolteacher.
With the enormous numbers of layoffs and foreclosures, the credit reports of many hardworking, talented people have taken a hit. Unemployment rates are higher among minority groups, leading to the disparate impact identified by the EEOC.
Posted by marykeating on December 21, 2010 under Employment benefit issues, Family responsibility |
The Fourth Circuit recently made an unexpected (by me, at least) ruling on the Family and Medical Leave Act in Coleman v. Md. Ct. of App. It rejected claims (including race and retaliation) by an employee of the Maryland court system. The employee claimed that his termination was motivated in part by his requesting to take time off for an illness. He had been employed long enough to be covered by the Family and Medical Leave Act, and of course the state has more than 50 employees. But the Fourth Circuit decided that Congress went too far in making states liable under the federal law. Under the Eleventh Amendment to the Constitution, states are immune from suit in federal court, with many exceptions. One exception is when Congress has the power under the United States Constitution to trump the state’s interest.
In the case of the FMLA, Congress enacted the law in large part to protect the jobs of women, who are disproportionately the caregivers to young, older, and sick relatives. But in the case of self-care, the Circuit Court decided, there was no such attempt to combat discrimination. Instead, the goal was to ease economic hardship caused by illness.
The Fourth Circuit had earlier held that no part of the FMLA could be applied to states. That decision was overturned by the Supreme Court in 2003, in Nevada Department of Human Resources v. Hibbs. The Supreme Court could revisit this issue if different circuits issue inconsistent opinions.
Posted by marykeating on December 10, 2010 under Wage and hour issues |
Advocates for workers as well as governments worry about the misclassification of employees as independent contractors. A true independent contractor has control over his or her work conditions, provides his own tools, is not subject to close supervision, and often has multiple clients. By classifying an employee as an independent contractor, the employer avoids paying FICA taxes, unemployment contributions, workers compensation premiums, and of course any fringe benefits offered to employees. In addition, they do not have the right to form a union, can’t sue under the anti-discrimination laws, and do not have the enhanced damages awarded in court when wages are withheld.
A new study by the National Employment Law Project reports that port workers are often categorized as independent contractors. This trend not only deprives drivers of the rights mentioned above, but requires them, under the guise of being “independent,” to own or lease their own trucks, pay for gas and insurance, and be paid only by the load. But they are held to exclusive contracts that forbid them from working for any other employer.
Another byproduct of this system is that the truckers make too little to maintain their rigs adequately, so our highways are beset with older and poorly maintained equipment.
The study recommends that the nation’s ports better the situation by making rules requiring the trucking companies to own and maintain their own trucks, and classify their drivers as employees. Many of these drivers will still be exempt from overtime pay under the Motor Carriers Act exemption to overtime, but at least would be able to spend their wages on themselves and their families, instead of their employers’ trucks.
Posted by marykeating on December 7, 2010 under Sex-based discrimination |
The Supreme Court has granted Wal-Mart’s request for a review of the order allowing a record-sized class action to proceed. As reported here earlier, Wal-Mart stands accused of systematically discriminating against female workers. A judge on the west coast allowed a class action of at least a half million current and former women workers, with the size of the class possibly triple that.
The Supreme Court is expected to decide whether the class was proper at all, and if so whether the class can be awarded money damages, or only injunctive relief. If injunctive relief is ordered, Wal-Mart might be told to enact programs designed to recruit more women, handle internal discrimination claims with independent watchers, and other safeguards intended to prevent other violations.
If money damages are allowed against the country’s largest private employer, they could be enormous. By the time it’s tried, the case would be at least a decade old, and the women who still worked for Wal-Mart could be entitled to years of back pay.
Posted by marykeating on December 2, 2010 under Economic situation |
Although the recession is still hurting many, the Brookings Institute shows that Baltimore has fared better than most. Although employment overall is down, Baltimore ranks 42 in the global recovery standings, while in pre-recession performance, it ranked 109.
Washington had a similar rise, with a rank of 85 before the recession, and 37 according to the “recovery” figures, collected in 2009 and 2010.
This is cold comfort to those still unemployed. The lame duck Congress failed to extend unemployment benefits, when the Senate failed to approve a one-year extension. The Republican caucus is already threatening to hold up all sorts of legislation unless Congress extends Bush-era tax cuts for the wealthiest taxpayers. The Department of Labor reports, though, that the continuation of unemployment benefits lessens the impact of the recession, not just on the jobless and their families, but on the nation’s gross domestic product. Naturally, the unemployment benefits are quickly spent.
