Saturday, November 26, 2005
1. Whether 5 U.S.C. 7121(a)'s provision that the negotiated grievance procedures of a federal collective bargaining agreement be "the exclusive administrative procedures" to resolve grievances precludes an employee from seeking direct judicial redress when he would otherwise have an independent basis for judicial review of his claims.
2. Whether the Civil Service Reform Act, 5 U.S.C. 7101 et seq., precludes federal courts from granting equitable relief for constitutional claims brought by federal employees against their employer.
Posted by: Paul M. Secunda
The 30th Annual Wagner Labor & Employment Moot Court Competition will be held at New York Law School on March 15-19, 2006. The Wagner Competition is the nation’s largest student-run moot court competition and the only national competition dedicated exclusively to the areas of labor and employment law. The NYLS Moot Court Association sponsors this competition in honor of the late United States Senator, Robert F. Wagner, Sr., a distinguished alumnus.
Friday, November 25, 2005
What is the limit of what public school teachers, as government employees, can say about political issues of the day to their students?
This is the question posed by this article today from CNN.com. On a vocabulary quiz, one question read: "'I wish Bush would be (coherent, eschewed) for once during a speech, but there are theories that his everyday diction charms the below-average mind, hence insuring him Republican votes.' 'Coherent' is the right answer.'"
Did the teacher go too far? Back to the Connick/Pickering test, is the teacher speaking out on a "matter of public concern"? And if so, does audience matter? In other words, would there be a different outcome if this were a quiz in middle or elementary school? All interesting questions of boundary-drawing at the intersection of employment and education law.
Posted by: Paul M. Secunda
On Thursday, February 2, 2006, Susan V. John (photo at left), Chair of the New York State Assembly Labor Committee, will discuss Current Labor Issues in the New York State Assembly. The lunch will be held at 12:45pm in NYLS Room A300. For more information or to register, see Labor Issues in the Assembly.
On Thursday, March 2, 2006, three speakers will present Fighting Wal-Mart: Strategies for Organizing, Legislating and Litigating. The speakers will be Paul Sonn, Associate Counsel at the Brennan Center for Justice; Rachel Geman, partner in Lieff Cabraser Heimann & Bernstein, LLP who represents workers in a class action suit against Wal-Mart; and Pat Purcell, Organizing Director of United Food and Commercial Workers Local 1500. NYLS Professor Seth Harris will moderate the lunch discussion, which will be held at 12:45pmin NYLS Room A300. For more information or to register, see Fighting Wal-Mart.
On Thursday, April 6, 2006, Joseph P. Addabbo, Chair of the New York City Council Civil Service & Labor Committee, will discuss Current Labor Issues in the New York City Council. The lunch will be held at 12:45pm in NYLS Room A300. For more information or to register, see Labor Issues in City Council.
Thursday, November 24, 2005
The University of Chicago Law School Faculty Blog has an interesting post, with web-cast, on "Obesity Regulation" from a speech Dean Saul Levmore delivered last week to the Standard Club in Chicago. Levmore's thought-provoking thesis is that you might be able to enlist the government to pass legislation or promulgate programs to make you do something, say quit smoking or control your weight, which you otherwise might not do on your own. Such regulation helps with individual self-control problems. Although Levmore does not believe such obesity regulation is likely from the government (for among other reasons, because interest groups want people obese (i.e., weight loss program companies, snack food manufacturers, etc.), on the other hand, employer arrangements that give people the incentive to lose weight might work.
Some highlights of this talk: obesity is smoking 40 years ago. Most people aren't happy they smoke. Same with obesity, few people are happy with being overweight. Internal costs of obesity are large. What to do about this?
From an employment law perspective, the obesity crisis in this country matters because of the rising health insurance costs associated with obesity. Can employers come up with arrangements whereby they would award employees for not being overweight or charge them (perhaps through higher health insurance premiums) for being overweight? Consider that obese employees are generally not protected by anti-discrimination laws (such as the ADA).
Would such programs be a good idea, especially if a large percentage of overweight workers believe they cannot control their weight? Or even if we believe most people can control their weight, as a matter of public policy, do we want employer's interfering with decisions we make in our personal lives? Do public employees have more protection under a Lawrence-like substantive due process right to decisional non-interference in private affairs?
To be clear, the employer would not be banning an employee from being overweight, but putting in place mechanisms which would encourage the employee to lose weight (through carrots, sticks or both).
In any event, food for thought on this Thanksgiving day. All comments welcome.
Post by: Paul M. Secunda
New York University School of Law’s Center for Community Problem Solving (CCPS) released yesterday the results of its study of 500 Mexican immigrants living in and around New York City. The study found, among other things, that nearly 60% of the immigrants self-reported having suffered some form of discrimination, primarily based on language, race, and immigration status. The broad study was intended to help learn about Mexican immigrants’ health status and access to health care, and about associations between their health status and legal status acculturation, discrimination, and social support. For more, see Health of Mexican Immigrants Pilot Study.
Wednesday, November 23, 2005
The Department of Labor has sued former executives of Riscomp Industries Inc. (dba RJ Associates) of Minneapolis for mismanaging the company's health plan and leaving plan participants and their families with more than $2.1 million in unpaid health claims. The suit alleges that Robert Wood, Kurt Wood, and David Nelson violated ERISA when they retained more than $1.2 million of health plan contributions in the firm's corporate account. At the time of the violations, the defendants served both as executives for Riscomp and as trustees to the health plan.
Riscomp was a human-resources management company that, among other things, handled employee benefits and other administrative tasks for business owners and other employers. The DOL previously has sued the company for abandoning its 401k plan. Riscomp has filed for bankruptcy. For more, see the DOL's press release.
Today, graduate students at NYU are entering Day 11 on the picket line, demanding recgonition from the university of their union. For those of you who have not been following the developments in this area of labor law, the controversy surrounds whether graduate assistants are considered statutory employees under Section 2(3) of the NLRA and thus, have Section 7 rights to organize, bargain collectively, and engage in other protected activities for mutual aid or protection, all without fear of employer retaliation.
In a recent 2004 NLRB decision, a 3-2 reversal of a previous 2000 decision granting bargaining rights to the NYU graduate students, the Board determined that graduate assistants at private universities were not statutory employees under the NLRA, but rather students who have assistantship semesters as part of their financial aid packages. Consequently, NYU withdrew recognition this past summer from the union and since that time the graduate assistants have been trying to get the university to recognize them again for purposes of engaging in collective bargaining.
Inside Higher Ed reports that approximately 165 classes out of the 2700 offered at NYU use graduate assistants as primary instructors, but another 1000 or so graduate students help by grading or holding recitation sections.
The tension is mounting between the university administration, graduate students, as well as disgruntled parents of undergraduate students and undergraduate students on both sides of the issue. Stay tuned!
Posted by: Paul M. Secunda
Tuesday, November 22, 2005
As some readers of this blog may be aware, there was a mini scandal in the blogging world last week when the author of the Underneath Their Robes blog (who utilized the pseudonym Article III Groupie (AG3)) was revealed as being one David Lat, an assistant United States Attorney for the District of New Jersey. Recent press articles suggest that Mr. Lat's job with the Justice Department may be in jeopardy because of his blogging activties.
Which all raises a very interesting public employment law question: To what extent can Mr. Lat be terminated from his public employment for engaging in this blogging activity? The answer would seem to turn on the Connick/Pickering First Amendment "two step." First, was the speech on a matter of public concern, and, if so, does the government's interest in efficiency outweight the First Amendment speech rights of Mr. Lat?
There is no easy answer to either of these questions, but here are some thoughts. Given that Underneath Their Robes has been billed as the premiere gossip site on federal judges in America, it is not evident that there is any real public concern being addressed (at least not in the sense of core political speech, unless knowing who are the "Superhotties of the Federal Judiciary" counts). But even if we assume "public concern," doesn't the U.S. Attorney in New Jersey have the right (nay, responsibility) to maintain the credibility and stature of his organization in the eyes of the public in these circumstances? And won't this revelation about Mr. Lat's identity cause substantial disruption to the United States Attorney's functions and missions?
One might also think of the Supreme Court case in Dale dealing with expressive associations and the rights of the Boy Scouts to choose whom they wish to be the public persona of their organization. Is the United States Attorney's office an expressive association? (We might know more after the Solomon Amendment case is decided) And if so, under Dale, does it have the right not to associate with bloggers like Mr. Lat?
All comments are welcome.
Hat tip: Howard
Posted by: Paul M. Secunda
Monday, November 21, 2005
President Bush has annouced that he will nominate Peter Kirsanow, a Cleveland Attorney, to fill one of two vacancies on the five-member National Labor Relations Board. Kirsanow has most recently served as member of the U.S. Civil Rights Commission. Kirsanow's term, if confirmed, would run until 2008.
President Bush has also re-nominated Peter Schaumber to continue until 2010. He has also nominated Ronald Meisburg, a former Board Member, to serve as general counsel to the Board. Finally, former Member Dennis Walsh has been nominated to fill another seat. The other two Board Member positions are currently held by Chairman Robert Battista (term expires December 2007) and Member Wilma Liebman (term expires August 2006).
Hat Tip: Joe Slater
Posted By: Paul M. Secunda
Tom R. Tyler, Promoting Employee Policy Adherence and Rule Following in Work Settings: The Value of Self-Regulatory Approaches, 70 Brooklyn L. Rev. 1287 (2005).
Scott Kording, Slicing Through the Gordian Knot: "Employers," Standing, and Removal Under ERISA, 2005 U. Ill. L. Rev. 1257 (2005).
David L. Abney, Excluding the Disabled From Trial: The Impact of the Americans With Disabilities Act, 28 Am. J. Trial Advoc. 415 (2005).
Amy A. Weems, A New Use for Civil RICO: Employees Attempt to Combat the Hiring of Illegal Immigrants, 28 Am. J. Trial Advoc. 429 (2005).
Eric Tucker, "Great Expectations" Defeated?: The Trajectory of Collective Bargaining Regimes in Canada and the United States Post-NAFTA, 26 Comparative Labor L. & Pol'y J. 97 (2004).
Alisa DiCaprio, Are Labor Provisions Protectionist? Evidence from Nine Labor-Augmented U.S. Trade Arrangments, 26 Comparative Labor L. & Pol'y J. 1 (2004).
Jean-Michel Servais, Universal Labor Standards and National Cultures, 26 Comparative Labor L. & Pol'y J. 35 (2004).
Michal Sewerynski, Toward a New Codification of Polish Labor Law, 26 Comparative Labor L. & Pol'y J. 55 (2004).
Sunday, November 20, 2005
1. Bernard Hoekman & L. Alan Winters, Trade & Employment: Stylized Facts and Research Findings.
2. Orly Lobel, The Four Pillars of Work Law.
3. Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.
4. Charles A. O'Reilly & Brian G. M. Main, Setting the CEO's Pay: Economic & Psychological Perspectives.
5. Allison Christians, Social Security in the United States Treaties and Executive Agreements.