Workplace Prof Blog

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

Doorey's Law of Work Blog Updated

David Doorey is a labour law professor at York University in Toronto who many of you know. His popular blog on labour and employment law, Law of Work Blog, has had a professional makeover.  

You should check it out as a great source of issues and events in Canadian law and policy.  Last year it received the honour of Best Law Blog in Canada. 

Defintely worth a look.

PS

Interesting Whistleblower Decision from Michigan Supreme Court

Thanks to Sam Bagenstos (Michigan) for passing on this recent whistleblower decision, Whitman v. City of Burton, from the Michigan Supreme Court.

Here is the summary from Justia.com (opinion also included at this link):

Plaintiff Bruce Whitman had been employed by defendant City of Burton as the police chief from 2002    until 2007. Codefendant Charles Smiley, the Mayor, declined to reappoint plaintiff. Plaintiff then filed suit under the [Michigan] Whistleblowers' Protection Act (WPA), alleging that he was not reappointed because he had threatened to pursue criminal charges against the mayor if the city did not comply with a city ordinance and pay him for unused sick, personal and vacation time he accumulated in 2003. Defendants contended that plaintiff had agreed to forgo any payout for accumulated leave in order to avoid a severe budgetary shortfall and that plaintiff was not reappointed because the mayor was dissatisfied with plaintiff's performance as police chief. A jury returned a verdict in favor of plaintiff; the trial court denied defendants' motion for judgment notwithstanding the verdict or a new trial. Defendants then appealed. The Court of Appeals reversed, concluding that plaintiff's claim was not actionable under the WPA because he had acted to advance his own financial interests and not out of an altruistic motive of protecting the public. Upon review, the Supreme Court concluded that nothing in the WPA's language addressed an employee's motivation for engaging in protected conduct, nor did any language mandate that the employee's primary motivation for pursuing a claim under the Act be a desire to inform the public of matters of public concern. Accordingly, the Court reversed the appellate court and remanded the case for consideration of remaining issues on which that court did not formally rule, including whether the causation element of the WPA had been met.

This is an interesting ruling, especially since the Michigan WPA seems to diverge from the federal WPA as far as what is considered protected activity.  I may be wrong on this point and I'll let other experts, like Richard Moberly, weigh in. 

Also, I do not know enough about the Michigan WPA to know whether this interpretation jibes with something peculiar in the way this state law is written, or whether this provision exists in many states and is similar to the federal law.  If the latter, this decision could be persuasive authority for other states and as far as the federal law. 

One additional thought.  Interesting that the plaintiff decided not to file a First Amendment claim.  Just speculation, but perhaps the attorney thought this would be considered official capacity conduct under Garcetti or not a matter of public concern under Connick.  Regardless, given all the hurdles a plaintiff must negotiate to win a public employee First Amendment claim, clearly his counsel made the right call in focusing on the state WPA law.

PS

D.C. Circuit Strikes Down NLRB Notice Rule

Here we go again.  You know the saying, "Bad facts makes bad law"--well, for the D.C. Circuit you might replace "bad facts" with "NLRB."  I know from my time as an NLRB appellate attorney that a lot of circuit judges don't like the NLRA, but much of the D.C. Circuit seems to go into a frenzy when presented with an important NLRB issue.  Recently, we saw the court strike down over 150 years of recess appointment practice in Noel Canning; today, the court expands the First Amendment far beyond what I've seen (in an admittedly narrow area) and strike down the NLRB's long practice of equitable tolling--all in a case involving something as common as a government employee right's notice.  The case is NAM v. NLRB (the judges were Randolph, Henderson, and Brown--another reminder that the White House's inability to get nominees on teh D.C. Circuit has a real impact).

Although the court starts with Section 8(c), which prevents the NLRB from using non-threatening speech as evidence of a ULP, the bulk of its holding makes an argument that First Amendment prohibits the government for telling companies to disseminate government information (Judges Henderson and Brown would also hold that Section 6 does not allow the Board to issue prohphylatic rules either).  Indeed, based on my quick reading of the opinion, it seems to cast doubt on the ability of the government to require notice postings in most instances, or at least punish any employer for refusing to post notices (it did hold that its opinion didn't oerturn pre-election notice posting requirements, which don't implicate Section 8(c)).  In other words, we may see challenges to FLSA, OSHA, and EEOC notices--although I'm guessing that most employers are used to these and don't get as worked up about informing their employees about the right to be paid the minimum wage, not to die at work, and not be discriminated against than they do about informing employees about their right to unionize.

In spite of the broad First Amendment language, the court ultimately holds that the central problem is that the NLRB cannot issue a ULP finding for a failure to post a notice or use that failure as evidence in a ULP case.  One might think that the Board would still be able to "require" the notice postings--but be unable to punish an employer for not following the requirement.  However, the court killed that option for the time being by refusing to sever the notice requirement from the enforcement provisions because the Board had earlier decided not to issue a voluntary rule.  That seems like a weak reed to knock out the entire rule, especially given that the court left open the question whether the NLRB had authority to issue an enforcement-less notice rule.  If the Board even gets its quorum question settled, it may try to issue the notice requirement while avoiding the enforcement problems.  Issuing a notice requirement without a way to enforce it perhaps seems a wasted effort, but I think there is some force in a government requirement, even one without a penalty.  On the other hand, the NLRB may be exhausted by its attempt to merely inform employees of their rights and just give up.  I'll also note that the court stressed the Board's failure to list employees' right to decertify in the notice, which--as I've noted before--I thought was bad judgment.  That wouldn't have affected the outcome, but it didn't help.

Of perhaps even greater significance was the court's rejection of the NLRB's alternate means of enforcing the rule:  by tolling the statute of limitations for a failure to post.  But, the court didn't just reject tolling for notice violations.  Instead, it when much farther by rejecting the Boad's use of equitable tolling in general.  

In many ways, this is the same thing we've seen for a long time from circuit court and the D.C. Circuit in particular.  But I do think that this case and Noel Canning illustrates a new level of activism.  The court is reaching far beyond what it needs to strike down a NLRB rule without much thought (or at least much care) about the broader ramifications.  For instance, the court dismisses the Board's reliance on a decision upholding a Bush-era rule requiring posting of notice of workers' right not to join a union or the right to make dues objections because the challenge to that case did not have a free-standing First Amendment claim.  Fair enough, perhaps, but the court didn't seem to grasp the signficance that this ruling might cut different ways.  For instance, once unions start attacking restrictions on its speech (seriously, what's been taking so long?!), will the D.C. Circuit be just as committed to its construction of the First Amendment?  We'll have to see . . . .

Hat Tip:  Patrick Kavanagh

-JH

Zelinsky on California Dreaming: The California Secure Choice Retirement Savings Trust Act

Edward A. Zelinsky (Yeshiva University - Benjamin N. Cardozo School of Law) has posted on SSRN is new piece forthcoming in the Connecticut Insurance Law Journal: California Dreaming: The California Secure Choice Retirement Savings Trust Act.

Here is the abstract:

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual retirement accounts under the Code. Hence, employees participating in savings arrangements established under the Act will not receive the income tax benefits associated with individual retirement accounts.

If the Act were to be amended to make its accounts individual retirement accounts, the Act would survive ERISA preemption under New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995), though not under Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). Since Travelers is the Court’s more recent and more compelling construction of ERISA preemption, the Act should survive ERISA preemption if the Act is amended to have true individual retirement accounts.

A final section addresses the choices other state legislatures (as well as Congress) confront if they elect to follow part or all of the path on which California has embarked to encourage private retirement savings. President Obama has recently proposed a federal mandate under which employers with more than ten employees would be required to maintain either retirement plans or IRA coverage. The President’s proposal ensures public debate about the appropriate function of government in encouraging retirement savings. The Golden State’s Act will play an important role in that debate. In that debate, I favor state-by-state experimentation rather than any single approach to the task of encouraging greater retirement savings.

As always, Ed wrties a comprehensive, easily-understandable explanation of the new California state-run pension plan for private employees. I have read this piece in full and agree with Ed that California has failed to set up IRAs for employees as they desired and instead have created an ERISA plan.  I also agree with Ed that such provisions should be amended so that this scheme is given a chance to work to provide an additional vehicle for retirement savings for California residents.

PS