Workplace Prof Blog

Feldblum Nominated to EEOC for Another Term

Congratulations to Chai Feldblum (EEOC, Georgetown) for her nomination to the EEOC for a second term. President Obama announced the nomination yesterday along with a group of other positions here. Given her extensive background on antidiscrimination issues in the legislative clinic at Georgetown and her central involvmement in drafting, coalition building, and passage of the ADA and ADAAA, Chai has been a very effective commissioner. She and Commissioner Lipnic, one of the President's Republican nominees, in particular have been able to work with business and employee advocates on enforcement issues. Here's hoping the Senate confirmation process goes smoothly this time around as well.

h/t Marcy Karin (Arizona State)

MM

Comparative Unjust Dismissal Law

Normally here at Workplace Prof Blog, we at least like to pretend that we have some shame when it comes to self-promotion by getting fellow bloggers to post on each others' papers.  I'm going to break this norm, however, because this post is as much a rquest for assistance as anything else.  Sam Estreicher (NYU) and I have posted on SSRN our article, Comparative Unjust Dismissal Law: Reassessing American Exceptionalism, which will appear in the North Carolina Law Review.  

I've copied the abstract below, but one aspect of the article that I want to focus on here is our attempt to give as rich a picture as we can on how unjust dismissal laws are actually operating in various countries.  This attempt has involved, among other things, trying to find data on enforcement and talking to local experts.  As you can see from our acknowledgements footnote, we've already received a tremendous amount of help from a large number of people--and hats off to all them once again for all their great assistance.  However, we've had trouble finding good data for a lot of countries and, especially with an article this long, have no doubt messed something up or overlooked a relevant issue.  So, our request is that if you have any suggestions, corrections, comments, or leads on useful data, please let me know (you can email me at jmhirsch@email.unc.edu) so we can make the change before publication.  To the abstract:

Commentators have long debated the merits of the United States’ "at-will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals. 

Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.

This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.

Thanks!

-JH

Call for Papers for International Comparative Sciences Symposium in Sofia, Bulgaria

From friend of the blog, Dara Chernyeva, please consider the following international conference which touches on labor and employment law topics:

I'm writing to you to share the call for papers for a International Comparative Sciences Symposium in Sofia which is to be held in October this year. There are two sessions there which might be of interest to our colleagues:

- comparative law session;
- comparative labour studies session.

If you consider this event to be of possible interest to your colleagues working in the field of labour law (and possibly to your non-legal and/or non-labour-law colleagues as well), please feel free to share it with them. Please find below the third call for abstracts for this Symposium as forwarded to me by my Slovenian colleague and the link to the Symposium website.

The Symposium is a new initiative of the Bulgarian Comparative Education Society and our colleagues from the Society kindly asked me and other comparativists to share the information on this Symposium as widely as possible. We all know how difficult it may be sometimes to convene an international event for the first time at a national level. Therefore I believe it'd be a good idea to support this undertaking at least by spreading the information about it.

Here is the call for paper and conference website and registration information:

This is our Third Call for abstracts, full papers and roundtables to be submitted to the International Symposium on Comparative Sciences that will be organized by the Bulgarian Comparative Education Society and held in Sofia, Bulgaria, 8 - 11 October 2013. Please be informed that the abstract submission deadline is extended by 31 May.
 
This will be a forum where different comparative sciences can meet and discuss problems of common interest. Scholars from the following sciences are invited: Comparative Education, Comparative Psychology, Comparative Sociology, Comparative Religion, Comparative Linguistics, Comparative Literature, Comparative Civilization Studies, Comparative Mythology, Comparative Anthropology, Comparative Law, Comparative History, Comparative Labour Studies.
 
Hope you will find this Symposium productive and interesting. For more information please visit the Symposium website.

PS

Senate HELP Committee Approves NLRB Nominations

Yesterday, the Senate HELP Committee approved all five NLRB nominees.  The Republican nominees (Johnson and Miscimarra) got unanimous support; Chairman Pearce (a Dem) had four Republicans vote against him; and Members Block and Griffin (Dems) had all Republicans except for Murkowski vote against them.  The reason for the objections to Block and Griffin are purportedly that they should step down because of the question regarding the legality of their recess appointments.  This, even though there has been universal agreement that all the nominees are qualified.  I find that argument silly--there's a circuit split on the legality of the appointments and Block and Griffin are simply trying to do the work the President asked them to do.  The entire issue has nothing to do with them personally.  (And it should go without saying, contrary to George Will's way-over-the-top op-ed today, that they are not comparable to George Wallace standing in the doorway at the University of Alabama).

As we've noted before, this issue is bigger than the NLRB and raises the possibility of the nuclear option, although there are still big questions whether the Senate Democrats will go that far.  At this point, Reid looks like he will wait to bring the nominations to the full Senate until July, in order to keep the option open.

As a final note, check out former Chairwoman Liebman's recent op-ed on the matter, which appeared in Politico.

Hat Tip:  Patrick Kavanagh

-JH

Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum

The good folks at Seton Hall have just put out a call for proposals for the Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum.  This is a great event--basically the labor & employment version of the Stanford/Yale/Harvard Junior Faculty Forum--so all of you junior scholars should definitely considering submitting.  The info:

 

Call for Proposals:

Eighth Annual Seton Hall Employment & Labor Law Scholars' Forum

Seton Hall Law School, October 11-12, 2013

Building on the successes of the last seven years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents. 

For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.

The event will be held at Seton Hall Law School, October 11-12, 2013.  As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere.  Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.  

Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, June 17, 2013.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or charles.sullivan@shu.edu. 

Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 23, 2013.

 -JH

U.S. Supreme Court to Hear Sox Whistleblower Case Involving Contractors

This past Friday, the United State Supreme Court granted cert. in the case of Lawson v. FMR LLC. The case concerns whether the Sarbanes-Oxley Act (SOX), which protects employees of publicly traded companies from retaliation for reporting financial improprieties, also protects the employees of private contractors of those companies. In the case, two fund investment advisors blew the whistle on a publicly-traded mutual fund which contracted for their services. The First Circuit found that the fund advisors were not covered by SOX protections.

The Court had asked the U.S. Solicitor General's views on the case, and the SG recommended that the Court bypass the case in order to allow the issue to percolate among more circuit courts.  The case, however, was granted.

Among the issues to be decided: whether protecting the employees of contractors is mandated under the plain meaning of SOX and whether a finding of no coverage for such employees will discourage whistleblowers from bringing financial fraud allegations to the attention of the public. It should also be an interesting case because it is one of the first to examine the whistleblower protections of SOX and will likely provide guidance on how broadly or narrowly SOX should be interpreted to protect whistleblowers in the financial services industry.

PS

Yesterday's Supreme Court Chevron Decision and Its Impact on the NLRB

A very interesting guest post today by Lise Gelernter (Buffalo) on the potential impact of yesterday's U.S. Supreme Court decision involving administrative law and the FCC, which could have some impact on the NLRB's power to interpret the jurisdictional bounds of its own statute:

As an administrative law geek, I read the Supreme Court’s Chevron decision issued yesterday (City of Arlington v. FCC 569 U.S. __, slip op. No. 11-1545 (5/20/13)) with great interest.  And then I started wondering if it had any impact on the NAM v. NLRB case concerning the NLRB’s authority to require employers to exhibit posters about employees’ collective bargaining rights. 

In the Arlington v. FCC case, the majority (with Justice Scalia writing the decision and Justice Roberts strongly dissenting, joined by Justices Alito and Kennedy) said that courts had to defer, under Chevron, to the FCC’s determination that it had the jurisdiction or authority to interpret an ambiguous part of its statute.  The statute in question required state and local governments to act on wireless antennas siting applications “within a reasonable period of time.”  47 USC §332(c)(7)(B)(ii).  The FCC had promulgated a rule interpreting “reasonable” to mean 90 days for applications for new antennas on existing towers, and 150 days for all other applications.  The question was “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, jurisdiction).” 

 The majority found that there was no difference in Chevron treatment of “jurisdictional” questions and “run-of-the mill” applications of an agency’s governing statute.  Slip op. at 5.  The bottom line was:

judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of statutory provision is “jurisdictional” or “nonjurisdictional.”  Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority.

Id. at 9.  The Court upheld the Fifth Circuit’s decision to grant Chevron deference to the FCC because the statutory grant of authority was ambiguous and the FCC’s interpretation of its authority was “a permissible construction of the statute.”  Id. at 4.  The ambiguity was found in  the “reasonable period” language in §332(c)(7)(B)(ii) and a “saving clause” that provided “that nothing in the [Communications] Act, except those limitations provided in §332(c)(7)(B) ‘shall limit or affect the authority of a State or local government’ over siting decisions.”  Id. at 2 (emphasis added).  The City of Arlington had argued that the “saving clause” took away the FCC’s authority to set specific time limits on siting decisions.  The Fifth Circuit had determined that the effect of the saving was ambiguous and that the FCC’s determination that it could impose specific time limitations was a “permissible construction of the statute.”  Id. at 4.

Although the DC Circuit’s decision in the NAM v. NLRB case is framed differently, I wonder if that court’s insistence on Section 8(c)’s limitations on the NLRB’s ability to require employers to post the NLRB’s words about collective bargaining rights isn’t really just a decision not to grant Chevron deference to the Board’s finding that it had the jurisdiction to require the poster.  As was true for the FCC, the NLRB has a broad grant of rulemaking power under §6; the NLRB has “the authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this Act.”  §201 of the Communications Act gives the FCC the similar authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.”  Shouldn’t the NLRB’s interpretation of its statute in a regulation get the same deference test applied as was true for the FCC?  It can be argued that the DC Circuit just began with the wrong analysis.

Some might argue that the NAM v. NLRB case is very different because it is based on a First Amendment analysis, not a Chevron-type analysis.  But the DC Circuit was very careful to tie everything back to the statute in the form of the limits that §8(c) imposes on the NLRB, not really on the First Amendment.  The court’s conclusion states: “We therefore conclude that the Board’s rule violates § 8(c).”  Slip op. at 23.  Thus, the issue in that case really is whether or not §8(c) precluded the Board from issuing its rule (which was the issue the litigants focused on).  The Arlington v. FCC case says that if the Board’s statutory interpretation is permissible, the court should defer to the Board’s interpretation in the face of the ambiguity raised by the interplay of §8(c), the §7 rights the NLRA grants, and the broad §6 rulemaking authority.  Of course, a court could find that the Board’s interpretation is not permissible, but that is not what the DC Circuit did.  The court short-circuited the traditional Chevron analysis that the Arlington v. FCC case requires.

I think Lise's analysis has some really bite to it and will be interested to hear what readers think of her theory in the comments.

PS

AALS Section on Disability Law Call for Papers and Presentations

for the 2014 AALS Annual Meeting to be held in New York, New York, January 2-5, 2014.

Title of Program:  The persistent societal habits of bullying, harassing, and excluding: Exploring the current legal and public policy issues at the forefront of efforts to combat such discrimination of people with disabilities, as well as other marginalized populations in our society, as well as efforts to provide better enforcement of legally protected rights in this context.

More information can be obtained from Richard Peterson, AALS Disability Law Section Chair, at richard.peterson@pepperdine.edu. 

The deadline for submission is Friday, June 7, 2013. The officers of the Section on Disability Law will select three abstracts for presentations. Authors will be notified no later than June 28, 2013. Please include “Response to AALS Disability Law Section Call for Papers/Presentations 2014” in the subject line of your email submission.

Hat tip to Katie Eyer.

 

CAS

Busy Beltway Labor Law Day: NLRB Nominations and DOL Secretary Committee Vote

In addition to the Third Circuit's divided, pro-Noel Canning decision this morning which Jeff has described here in his post from today, Washington has been busy with labor-oriented topics.

To wit, the Senate Health, Education, Labor and Pensions (HELP) Committee held a hearing on the five recently nominated members for the National Labor Relations Board (NLRB) (Democrats Mark Gaston Pearce, Richard F. Griffin, and Sharon Block, and Republicans Harry I. Johnson and Philip A. Miscimarra).  Surprisingly, the hearing lacked histrionics from either side, and a vote is planned by the Senate commitee next week on May 22nd.  My prediction would be to expect a party line vote sending the nominations to the Senate floor, where, of course, a Republican filibuster should be expected. It will be interesting to see how the GOP justifies this filibuster given that its complaints about the Obama administration surround the use of the recess appointment power, and now Obama is given them the nominees they asked for in the first place. There is some urgency here because the Board will lack a quorum as of August 27th, when Chairman Pearce's term expires.

In other news, the Senate HELP committee voted today 12-10 along party lines to forward the nomination of Thomas Perez to be Secretary of Labor.  Perez, who is exceptionally qualified to hold this position based on previous positions in federal and state government (he is the assistant attorney general in charge of the Justice Department's Civil Rights Division and he formerly headed Maryland's Department of Labor, Licensing and Regulation), has been under GOP attack for his purported role as assistant AG for civil rights. Not sure what the GOP will do on the Senate floor. They might have a hard time holding together a filibuster on this one, especially since their allegations against Perez appear to have turned out to be all smoke and no fire.

In any event, busy day today in Washington D.C. And I have feeling, the fireworks have just started.

PS

ADAPT International Conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?

From our friends at the ADAPT International Labor Law Program:

We are pleased to announce that ADAPT and the International Doctoral School in Human Capital and Labour Relations are organizing the international conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?, which is going to take place on 25-26 October 2013 at the University of Bergamo (Italy).

The conference is part of the ADAPT international events on Productivity, Investment in Human Capital and the Challenge of Youth Employment, which resulted in three volumes making up the ADAPT Labour Studies Book-Series edited by Cambridge Scholars Publishing and it aims at contributing to the current debate on youth unemployment and school-to-work transition.

Almost five years after the onset of the crisis, youth unemployment witnessed a further worsening. Besides persistent unemployment, the quality of youth employment is also challenged by the increase in non-standard, temporary, part-time and informal work. Tools to fill the youth productivity gap and ease school-to-work transition do exist, but sometimes they are misleadingly used and implemented. This is the case of traineeships, also known as internships or stages, which are conceived and implemented differently cross-nationally.

ADAPT and the International Doctoral School in Human Capital and Labour Relations invite professors, researchers, doctoral students, experts, practitioners and all those interested in the conference topics to submit papers. Deadline for abstract submission is 1st July 2013. We particularly encourage graduate students to submit papers.

PS

We are pleased to announce that ADAPT and the International Doctoral School in Human Capital and Labour Relations are organizing the international conference: Internship and Traineeship for Students and Young people. Training, School-to-work Transition or Exploitation?, which is going to take place on 25-26 October 2013 at the University of Bergamo (Italy).

The conference is part of the ADAPT international events on Productivity, Investment in Human Capital and the Challenge of Youth Employment, which resulted in three volumes making up the ADAPT Labour Studies Book-Series edited by Cambridge Scholars Publishing and it aims at contributing to the current debate on youth unemployment and school-to-work transition.

Almost five years after the onset of the crisis, youth unemployment witnessed a further worsening. Besides persistent unemployment, the quality of youth employment is also challenged by the increase in non-standard, temporary, part-time and informal work. Tools to fill the youth productivity gap and ease school-to-work transition do exist, but sometimes they are misleadingly used and implemented. This is the case of traineeships, also known as internships or stages, which are conceived and implemented differently cross-nationally.

ADAPT and the International Doctoral School in Human Capital and Labour Relations invite professors, researchers, doctoral students, experts, practitioners and all those interested in the conference topics to submit papers. Deadline for abstract submission is 1st July 2013. We particularly encourage graduate students to submit papers.

Annual Transgender Law Institute

From friend of the blog, Jillian Weiss:

The annual Transgender Law Institute will convene on August 22, 2013 at the National LGBT Bar Association’s 25th Anniversary Lavender Law® Conference & Career Fair. Lavender Law will be held August 22-24, 2013 at the Marriot Marquis in San Francisco, California. The Institute’s theme this year is “25 Years of Transgender Law.”

Institute participants will look back on the trans law movement’s history and examine substantive achievements, with an eye toward cutting-edge issues still to be tackled. Workshops will focus on employment law following Macy v. Holder, the EEOC’s precedent setting decision; immigration; health care; and increasing trans participation in the legal profession.

The keynote speaker for the Transgender Law Institute will be Shannon Price Minter, Legal Director of the National Center for Lesbian Rights, one of the nation’s leading advocacy organizations for the LGBT community. Mr. Minter, an openly transgender attorney, is known for his tireless work advocating and litigating to advance LGBT rights since the mid-1990s.

PS

Third Circuit Agrees With Noel Canning

Today, the Third Circuit just issued its decision (2-1) in NLRB v. New Vista Nursing & Rehab [ Download New Vista ].  I've haven't had a chance to really read it (including the dissent, it comes in at a whopping 157 pages), but it basically follows the D.C. Circuit's conclusion in Noel Canning that recess appointments are only allowed for intersession Senate recesses.

A few interesting things in New Vista.  First, this case--which substantively involved an employer's technical Section 8(a)(5) election challenge--involved former Member Becker's appointment.  This obviously expands the impact of this issue on past Board decisions, although I'm guessing not significantly, as there are probably not a lot of decisions involving Becker that are still pending and include this argument (which the Thrid Circuit held is not waivable).  Second, this only brings up the pressure for Supreme Court review, especially given the split with the Eleventh Circuit.

A final point is that, although I don't think it's an accident that courts are using the NLRB for this issue, what we're dealing with is much bigger than the NLRB.  This a separation of powers fight, and a big one.  Given the Republicans' de facto rule requiring a supermajority for all appointments, these cases severely limit the president's ability to make nominations.  The irony is that these decisions could end up giving the president more power if the Democrats finally decide to go nuclear and change the current filibuster rules, which only requires a majority vote.  I won't make a prediction on that, as there are a lot of factors at play as this battle plays out.  However, although I'm not predicting this either, don't be surprised if the Court ultimately cites its political question doctrine and just lets the elected officials go at it without court interference.  I'm not sure the Justices will be able to resist a big issue that brings in questions of textualism and originalism, but there is a reasonable argument that the political question doctrine is justified here.

Stay tuned!

Hat Tip:  Patrick Kavanagh

-JH

Penn State Labor Studies and Employment Relations Program Elevated to "School" Status

Some counter-momentum for schools of industrial relations in the United States?:

Paul Clark, Professor and Director of the new School of Labor Studies and Employment Relations at Penn State University wrote the LERA listserv this morning:

I am pleased to announce that on May 3rd, Penn State’s Board of Trustees voted to elevate our program from a Department to a School.  The change is effective immediately. 

Our new School of Labor and Employment Relations offers six degree programs in residence (BA & BS in LER, MS in HRER, 5-Year BS in LER/MS in HRER, 5-Year BS in Spanish/MS in HRER, and 4-Year JD/MS in HRER degrees) and five programs online ((BA & BS in LER, MPS in HRER, 5-Year BS in LER/MPS in HRER, and BS in Organizational Leadership degrees).  The elevation of the program to school status is the culmination of a lot of hard work by faculty, staff, and alumni over our 70 year history.  In recent years we have established a successful research Center on Global Workers Rights and are in the process of starting a new International Human Resources Management Project that will become a full-fledged center in the next year or two.  We also have reinstated our Labor Education and Research Program and created a new management outreach program called the Academy of Human Capital Management.

While our name will change, we will remain a part of the College of the Liberal Arts at Penn State.

We think the change in our status is a positive thing for our program and for the field of labor and employment relations.  We look forward to working with other programs to help move our field forward in the years ahead.

I, of course, agree whole-heartedly.  There has been too many shuttering of industrial relations programs in the US in the last decade or so, while focus has shifted to corporate-oriented Management and Human Resources programs in business schools around the country.  I can only hope the success at Penn State resonates with other campuses around the country.  As income inequality in this country grows dramatically and unions face increasing attacks from their corporate-sponsored opponents, these types of schools are essential to provide an academic viewpoint slowly disappearing.

PS                     

Social Networking and Its Effect on Race

The NY Times Opinionater has a piece from Nancy Dimatso (Rutgers Business) on the effect of social networking on black employees.  In it she notes the importance of social networks--no suprise to those of us in the legal field--and how those networks often work for whites, to the exclusion of others.  But, as she also emphasizes, this favoritism is generally not prohibited by anti-discrimination laws:

Getting an inside edge by using help from family and friends is a powerful, hidden force driving inequality in the United States. . . . Such favoritism has a strong racial component. Through such seemingly innocuous networking, white Americans tend to help other whites, because social resources are concentrated among whites. If African-Americans are not part of the same networks, they will have a harder time finding decent jobs.

The mechanism that reproduces inequality, in other words, may be inclusion more than exclusion. And while exclusion or discrimination is illegal, inclusion or favoritism is not — meaning it can be more insidious and largely immune to legal challenges.

Check out the whole piece.

Hat Tip:  Suja Thomas

-JH

NYU Conference on Compensation Regulation

NYU's 68th Annual Conference on Labor will be held on June 6-7.  This year's topic is Regulation of Compensation and you can see the schedule and speakers at the above link.  Also, the book with the conference papers will be edited by Cesar Rosado (Chicago-Kent).  It looks to be a good one.

-JH

Labor & Employment Roundup

Exam season is swamping me, so it feels like a good time for a quick & dirty roundup of recent news:

• ENDA is back.  Senators Merkely (D) and Kirk (R) have introduced it in the Senate.  I'm not holding my breath on seeing it passed, but it'll be interesting to see what happens given the changing landscape on this issue.  And, honestly, it's just a matter of time at this point.
• Another NLRB Facebook case, with a twist.  The employer had a conspiracy defense, alleging that the employees intentionally made concerted and protected postings to entrap the employer into firing them.  The Board quoted with approval the ALJ's use of the description "nonsensical."  Another twist is that the charging party asked for the employer to be ordered to buy copies of a California workers' rights book mentioned in a Facebook posting and give it schools and libraries.  That too was rejected.
• Georgetown University adjunts have voted to unionize as part of the SEIU.  The downside of moving to more adjuncts: they're definitely not management and while tenure/tenure-track faculty may not always get sympathy, adjuncts usually have plenty of valid grievances.  

Hat Tips:  Brian Clarke & Michael Duff

-JH

Seiner Awarded 2013 Outstanding Faculty Publication Award from South Carolina Law

Congratulations to friend of the blog and Twiqbal scholar extraordinaire, Joe Seiner (South Carolina), for winning the faculty publication award at his school this year.

From the webpage announcement:

Professor Joe Seiner received the 2013 Outstanding Faculty Publication Award at the University of South Carolina School of Law, which is presented to a faculty member who has written an outstanding piece of scholarship. Seiner received this year's honor for his article, "Punitive Damages, Due Process, and Employment Discrimination," 97 Iowa L. Rev. 473 (2012).  A faculty committee reviews eligible publications each year and selects the winner, and this year’s  award was presented by Robert Wilcox, Dean of the law school.  The paper proposes – for the first time – a uniform analytical framework for analyzing punitive damages in employment discrimination cases after the Supreme Court’s high profile decisions in Philip Morris v. Williams and Exxon Shipping v. Baker.

Congratulations, Joe! Well-deserved.

PS

NYLS Law Review Symposium on Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination

The New York Law School Law Review has an interesting new Symposium out which seeks to identify the reasons employment plaintiffs have far lower success rates on prejudgment and post-judgment motions when compared to other types of plaintiffs.  The symposium issue is entitled: Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination (links to all articles available). It is based on a symposium by that same name held at New York Law School in April 2012.

Here are the contents of the Symposium Issue:

I. Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination

    Introduction by Arthur S. Leonard, Professor of Law, New York Law School

    Summary Judgment in Employment Discrimination Cases: A Judge’s Perspective by Hon. Denny Chin, U.S. Circuit Court Judge, U.S. Court of Appeals for the Second Circuit

    Essay: From the “No Spittin’, No Cussin’ And No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective by Hon. Mark W. Bennett, U.S. District Court Judge, Northern District of Iowa

    The Jury (or More Accurately the Judge) Is Still Out for Civil Rights and Employment Cases Post-Iqbal by Suzette M. Malveaux, Associate Dean of Academic Affairs and Associate Professor of Law, The Catholic University of America, Columbus School of Law

    Bringing Back Reasonable Inferences: A Short, Simple Suggestion for Addressing Some Problems at the Intersection of Employment Discrimination and Summary Judgment by Hon. Bernice B. Donald, U.S. Circuit Court Judge, U.S. Court of Appeals for the Sixth Circuit; and J. Eric Pardue, Associate, Vinson & Elkins LLP

    “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases by Elizabeth M. Schneider, Rose L. Hoffner Professor of Law, Brooklyn Law School; and Hon. Nancy Gertner, Professor of Practice, Harvard Law School and U.S. District Court Judge, District of Massachusetts (Ret.)

    Inferences in Employment Law Compared to Other Areas of Law: Turning the Rules Upside Down by David L. Lee, Principal, Law Offices of David L. Lee; and Jennifer C. Weiss, Principal, Law Offices of Jennifer C. Weiss

    Stopped at the Starting Gate: The Overuse of Summary Judgment in Equal Pay Cases by Deborah Thompson Eisenberg, Assistant Professor of Law, University of Maryland Francis King Carey School of Law and Director, Center for Dispute Resolution.

    (In)competence in Appellate and District Court Brief Writing on Rule 12 and 56 Motions by Scott A. Moss, Associate Professor of Law, University of Colorado Law School.

    Cognitive Illiberalism, Summary Judgment, and Title VII: An Examination of Ricci v. DeStefano by Ann C. McGinley, William S. Boyd Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas

Extremely impressive and wide-ranging series of papers on perhaps the legal issue these days at the intersection between employment discrimination law and civil procedure.

PS

Call for Signers for Academic Letter in Support of Confirmation of Bipartisan NLRB Nominee Package

There has been much conversation of late about the Noel Canning NLRB recess appointment decision and whether it is likely to be heard by the U.S. Supreme Court. In the meantime, many are urging the Senate to confirm a full package of NLRB nominees (3 Ds, 2 Rs as is traditional).

On this basis, Lynn Rinehart at the AFL-CIO is asking academics to support confirmation of all five NLRB nominees:

As you know, we face a growing crisis in the enforcement of workers’ rights in the wake of Noel Canning and the stalemate in the Senate over NLRB appointments.

The Senate Labor Committee will hold a hearing next Thursday, May 16, on the five nominees to the NLRB.

In connection with that hearing, Erin Johansson at American Rights at Work is coordinating an academic sign-on letter in support of confirmation of the five-member bi-partisan package.

We urge you to add your name to the letter.  You can sign by visiting this page. 

PS

Another Attack on Public Unions: New California Case to Test Public Unions' Ability to Collect Dues

Thanks to Charlotte Garden (Seattle) for passing on this interesting and under-reported story about a new case just filed in California which has the potential to drastically change the way public unions operate in that state. The case is Friedrichs v. California Teacher Association and the complaint can be found here.

Peter Scheer on the 1st Amendment News website writes in his post, New 1st Amendment Case Poses Existential Threat to Public Employees Unions:

In a scarcely-noticed lawsuit filed [April 29th] in federal district court in Los Angeles, a conservative nonprofit, the Center for Individual Rights, claims that California’s system for collecting union dues from government employees abridges free speech safeguards by compelling employees to subsidize union political advocacy and activities with which they disagree.

And in case you think this case is a non-starter in light of the U.S. Supreme Court's Abood decision, think again:

On first look, the suit looks like a loser because the challenged union practices were upheld in a 20-year-old US Supreme Court decision, Abood v. Detroit Board of Education. Nonetheless, on second look, the suit has a very respectable chance of succeeding because of a 2012 Supreme Court decision, Knox v. SEIU, in which five justices said, in effect, that the Abood decision was a mistake. Also, the plaintiffs are represented by Jones Day, one of the biggest and best law firms in the country, which wouldn’t have taken the case unless prepared to litigate all the way to the nation’s highest court.

In other words, another attack on the very existence of public unions, like we have already seen in Wisconsin, Ohio, and Michigan.  The California public employee unions are extremely strong and willing to put the necessary money into this litigation to win, so it is anyone's guess what might happen.  It might come down to the judicial make-up of the California Supreme Court when, and if, the case is appealed there (as it did with Act 10 and the conservative-leaning Wisconsin Supreme Court).

PS