October 27, 2007
UAW-Chrysler Contract a Done Deal
As Paul noted last week, the outcome of the UAW membership vote on the proposed collective bargaining agreement with Chrysler was up in the air. There is uncertainty no longer. The results are in and the membership voted for the contract, although not by a large margin. As the New York Times reports:
The union said 56 percent of assembly workers and 51 percent of skilled trades workers voted in favor of the contract. Voting concluded early today, with Chrysler’s plant in Belvidere, Ill., the last to vote. The Belvidere plant rejected the contract with a vote of 55 percent against approval. But that was not enough to defeat the contract nationwide. . . .
The Chrysler vote was far more turbulent than the process at General Motors, where 66 percent of the members who voted approved the contract this month after a two-day strike.
Workers at Chrysler walked off the job for six hours, but local union leaders were split over the agreement. It was rejected by four assembly plants, but received support at a number of smaller factories as well as four big plants in the Detroit area, which approved the contract on Wednesday. Opponents voiced concerns that the Chrysler pact did not provide as many guarantees of future work as the G.M. contract. That issue is front and center at Ford, which lost $12.6 billion last year and does not expect to earn a profit in North America before 2009.
Talks there, which continued at a slow pace during the Chrysler vote, are expected to step up over the weekend. Generally, the U.A.W. expects to win the same contract terms under its practice of pattern bargaining, but as at Chrysler, the union may have to settle on something apart from the G.M. pact. . . .
hrysler’s disclosure that it had no plans for a future investment at the St. Louis South plant outside Fenton, Mo., prompted workers there and at the adjacent St. Louis North plant to reject the contract. Chrysler workers in Newark, Del., where the plant is scheduled to close, also rejected the contract.
Rather that risk such no votes, Ford instead may try to give as little information as possible about any factory whose future is on the line, said David L. Gregory, a professor of labor law at St. John's University in Queens. “Ford I don’t think is in a position to make anything beyond the barest good-faith declaration of principle that they’re going to do their best,” he said.
As the article notes, it is unclear whether Ford workers will be as willing to strike as the workers at Chrysler. Either way, it promises to be interesting. Stay tuned.
Respondent's Merit Brief in Mendlesohn "Me Too" Evidence Case
Thanks to Eric Schnapper (Washington), attorney for Respondent in the upcoming U.S. Supreme Court case of Sprint/United Management Co. v. Mendlesohn for providing us with a copy of Respondent's Brief on the Merits.
The questions presented are:
(1) Does Rule 401 of the Federal Rules of Evidence bar all evidence of other-supervisor discrimination or actions in an employment discrimination case?
(2) Does Rule 403 of the Federal Rules of Evidence invariably require, or in all cases authorize, the exclusion of evidence of other-supervisor discrimination or actions?
(3) Did the court of appeals err in holding that petitioner’s in limine motion should have been denied?
Unsurprisingly, I agree with the Eric that this type of other-supervisor discrimination is not only relevant, but should be permitted into evidence when it provides meaningful evidence of whether a discriminatory atmosphere pervaded the company culture.
More specifically, Eric argues:
Two types of pattern and/or practice evidence are relevant to an employment discrimination case. First, evidence suggesting the existence of a pattern of discrimination at the employer, or in the relevant business unit, is “competent evidence.” McDonnell Douglas v. Green, 411 U.S. 792, 804-05 (1973). Statistics are one, but not the sole, example of such evidence. Second, evidence of a pattern and/or practice of discrimination may in some cases be so compelling as to suffice by itself to meet the plaintiff’s burden of proof, and shift the burden of proof to the defendant. International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The evidence relied on by the Court in finding such a pattern and/or practice in Teamsters included 40 specific instances of discrimination, precisely the type of evidence that Sprint insists should be deemed inadmissible “me,too” evidence. 431 U.S. at 338.
As Eric explains very persuasively, "The existence of a culture of discrimination is relevant because it tends to explain why a particular supervisor might have engaged in discrimination."
Top-5 International Employment & Labor Law SSRN Downloads
- Vivek Wadhwa, Guillermina Jasso, Ben Rissing, Gary Gereffi, & Richard B. Freeman, Intellectual Property, the Immigration Backlog, and a Reverse Brain-Drain: America's New Immigrant Entrepreneurs, Part III (1284).
- Yaraslau Kryvoi, Why European Trade Sanctions Do Not Work (68).
- David J. Doorey, Can Factory List Disclosure Improve Labour Practices in the Apparel Industry?: A Case Study of Nike and Levi-Strauss (54).
- Virginia Mantouvalou (photo above), Is There a Human Right Not to Be a Trade Union Member? Labour Rights Under the European Convention on Human Rights (31).
- David J. Doorey, The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings (29).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- William F. Sharpe (photo above), Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (120).
- Shlomo Benartzi, Ehud Peleg, & Richard H. Thaler, Choice Architecture and Retirement Savings Plans (71).
- Brett McDonnell, Two Goals for Executive Compensation Reform (68).
- Phelim P. Boyle, Ranjini Jha, Shannon Kennedy, & Weidong Tian, Stock and Option Proportions in Executive Compensation (54).
- Paul Fronstin & Dallas L. Salisbury, Health Insurance and Taxes: Can Changing the Tax Treatment of Health Insurance Fix Our Health Care System? (49).
October 26, 2007
Harris on the Economics of Disabilities Accommodations
Seth Harris (New York Law School) has just posted on SSRN his chapter (forthcoming in Charles J. Whalen, ed., Human Resource Economics and Public Policy: Essays in Honor of Vernon M. Briggs) The Misdirected Debate Over the Economics of Disabilities Accommodations. Here's an excerpt from the abstract:
This chapter . . . explains why the debate over the economics of workplace accommodations mandated by the Americans with Disabilities Act ("ADA") has been misdirected. The ADA, and its accommodation mandate in particular, have been harshly criticized as government meddling in otherwise smoothly operating and efficient labor markets. The attack begins with the premise that accommodations raise employers' costs of hiring workers with disabilities. The ADA's accommodations mandate thereby prices workers with disabilities out of the labor market and contributes to the continuing decline in the employment rate of people with disabilities – a tempting man-bites-dog narrative about labor market regulation harming its intended beneficiaries. Two commentators have based calls for the repeal of the ADA on these grounds.
This chapter ... examines certain neoclassical economic and other assumptions that are too seriously flawed to justify the central role they have played in the economic debate over disabilities accommodations .... These flawed premises have distracted attention from likelier causes of the low and declining employment rate among workers with disabilities ....
As Harris points out, such causes include an educational attainment gap between workers with and without disabilities, the unavailability and inadequacy of employer-provided health insurance, and workplace and labor market discrimination.
Sullivan & Cromwell Settles Gay Bias Case
Sullivan & Cromwell has reached a settlement with a former attorney who had sued the firm for discrimination based on sexual orientation. As reported by Law.com:
The discrimination described by [Aaron] Charney, 28, included some acts of outright hostility, including one instance in which partner Eric Krautheimer allegedly threw documents at the associate's feet and ordered him to pick them up. But most of the alleged discrimination involved constant insinuations by partners that Charney was involved with another associate, Gera Grinberg, and that such a relationship was, in the alleged words of partner Alexandra Korry, "unnatural." Charney, who stated in his complaint that Grinberg is not gay and that the two were never in a relationship, said he complained about discrimination only to face retaliation in the form of what he claimed was a fabricated performance review that also criticized his closeness with Grinberg.
Sullivan & Cromwell categorically denied the allegations and responded by firing Charney and filing its own lawsuit claiming that the ex-associate had violated firm and client confidences in his widely disseminated complaint and that he had stolen from an adjacent partner's office documents concerning associate attrition that he passed to The Wall Street Journal. . . .
Much of the drama in the case in recent months has focused not on the allegations in the complaints but on the destruction of Charney's personal computer hard drive. The firm had sought the hard drive as part of its efforts to determine whether Charney had stolen documents. In February, Alterman said in court before Manhattan Supreme Court Justice Bernard Fried that Charney had destroyed the hard drive in response to a settlement offer made by Sullivan & Cromwell at a secret Jan. 31 meeting. Charney's lawyers later added a conspiracy charge in an amended complaint, claiming that Sullivan & Cromwell had engaged in an elaborate plot to discredit his case by having him destroy his hard drive and possibly face sanctions for spoliation of evidence. Charney alleged partner Gandolfo DiBlasi's threats at the Jan. 31 meeting to "crush" Charney if he did not turn over or destroy his hard drive intimidated him into taking the action he did.
The judge in the case had thrown out the conspiracy charge, in addition to one for intentional infliction of emotional distress, but left the discrimination claim. Some of the firm's confidentiality claims had also been denied.
This case highlights the fact that sexual orientation is only available at the state or local level. And, given the president's recent threat to veto ENDA, that fact doesn't look like it will change in the next couple of years.
AFL-CIO Files ILO Complaint Against the NLRB
Yesterday, the AFL-CIO filed a complaint against the NLRB with the the International Labor Organization's Committee on
Freedom of Association. The AFL-CIO is arguing that the current Board's decisions represents a "systematic effort to deny workers' rights in violation of
international labor standards." According the BNA's Daily Labor Report (subscription required), the complaint's litany of charges includes:
[The charge] that through its decisions the NLRB has shrunk its coverage of certain workers; limited the rights of workers who are protected by the National Labor Relations Act; strengthened management's prerogative to discriminate against, harass, and intimidate workers; and refused to apply the "few meaningful remedies available" under the NLRA.
Specifically, the federation alleged that the United States is in violation of ILO Convention 87 on freedom of association and protection of the right to organize and ILO Convention 98, which is the application of the principles of the right to organize and to collectively bargain. . .
The complaint noted that the Committee on Freedom of Association has expressed reluctance to determine the "inadequacy of United States labor legislation in safeguarding the principles of freedom of association" from one NLRB decision or from decisions that relate to a single dispute. In the complaint, the federation said it is not relying on a single case or dispute "to demonstrate the extent to which the NLRB has eviscerated workers fundamental rights during the course of the Bush Administration." . . .
According to the complaint, in one category of cases the board has denied freedom of association to entire groups of workers by excluding them from the definition of employee. . . . In another category of cases, the complaint alleges that the Bush board has "significantly curtailed" the rights of workers who remain covered by the NLRA. Through numerous rulings, the AFL-CIO said, the NLRB has given employers wide latitude to threaten, harass, and spy on their employees with impunity. In addition, a wide range of employee conduct no longer qualifies as concerted, protected activity, allowing employers to terminate their employees, the complaint said. Management conduct in favor of union representation has been found to be unlawful, but the board has greatly expanded the scope of anti-union employee conduct that is lawful, the complaint said. The AFL-CIO also said that the board has strengthened management rights at the expense of worker rights by elevating employers' property rights over employees protected rights, and strengthening employer bans on employee speech including the wearing of union buttons and other insignia.
The complaint also charges that the Board has improperly abandoned the use of bargaining orders and that Board delay denies workers their fundamental rights. The remedy sought is for the U.S. to "take all necessary steps to restore, in law and in practice, the rights of workers to have full freedom of association and engage in effective collective bargaining."
I don't know enough about the ILO's adjudicatory process to weigh in on the likely success of the complaint. What is clear, however, is that this serves as another tool for unions to challenge the Board's dramatic pro-employer shift over the last few years. Of course, the best remedy for that is to put a Democrat in the White House, so as the election season ramps up further, organized labor may be even more active than normal.
Work & Walk
The contraption at left is a combination workstation and treadmill, designed by a fellow from the Mayo Clinic. News of this multitasking device comes via Life at Work, a blog maintained by New Zealand lawyer Andrew Scott-Howman. Life at Work is a blog worth following -- check it out!
A View of Employment Relationships from the Boardroom
A group of faculty from the University of Melbourne Law School have just posted on SSRN the results of their empirical study of how board members of Australian companies view company stakeholders. Here are their findings related to employees:
The Role of the Law as a Source of Obligation to Employees
- 42.5 percent of directors believed that the dominant source of their responsibility to employees was business imperatives, i.e. that their responsibility to employees stemmed from the importance of employees to ensuring the success of the business.
- A further 24.8 percent of directors believed that the dominant source of their responsibility to employees stemmed from a social or ethical responsibility to ensure the well being of the employees of the company.
- Only 15.8 percent of directors believed that labour laws were the dominant source of their responsibility to employees, while 16.9 percent believed that corporate law was the dominant source.
Human Resource Issues Considered at the Board Level
- The four human resource issues most likely to have been considered three or more times at board level over the past year were ‘occupational health and safety’ (73.3 percent), ‘productivity’ (66.3 percent), ‘training’ (65 percent) and ‘performance management’ (64.2 percent).
- ‘Industrial disputes’ (10 percent) and ‘enterprise bargaining’ (15.4 percent) were among the least commonly raised human resources issues according to directors.
Partnership Relations with Employees
- A large majority (76.9 percent) of directors believed that the relationship between the company and its employees could best be described as being one of partnership.
- A majority of the directors (70.8 percent) who believed that the relationship was one of partnership believed that it was a partnership based on the parties having the same interests and common goals.
- The most commonly expressed reason for directors to indicate that the relationship was not one of partnership was that employees and the company could not be conceived of separately and therefore could not be parties in partnership.
For more, see Meredith A. Jones et al., Company Directors' Views Regarding Stakeholders.
Avery on Gendered Appearance Norms
Diane Avery (Buffalo) has just posted on SSRN her article (49 U.S.F.L. Rev. 1) The Great American Makeover: The Sexing Up and Dumbing Down of Women's Work After Jespersen v. Harrah's Operating Company. Here's the abstract:
Th[is] article argues that the Ninth Circuit's 2006 en banc decision, Jespersen v. Harrah's Operating Co., presented a doctrinal framework for analyzing worker challenges to employers' sex-based dress, grooming, and appearance codes that has no statutory support in Title VII of 1964 and its amendments in the Civil Rights Act of 1991. Jespersen held that Harrah's policy of requiring all female bartenders to wear certain makeup on the job was not discriminatory on its face because there was no evidence that the policy was based on “sex stereotypes.” In addition, the court ruled that, in the absence of evidence of the costs in time and money of buying and applying makeup, a mandatory makeup policy for women does not discriminate on the basis of sex by placing an “unequal burden” on female workers. The vision of gender equality underlying the court's analysis in the case reinforces the cultural devaluation of female workers' competence and intelligence by allowing employers to enforce gendered appearance norms.
The article examines how the court's “sex stereotyping” and “unequal burdens” doctrines have strayed from the statutory language of federal antidiscrimination law, as well as relevant Supreme Court interpretation of that language. The resulting judge - made law in Jespersen rests on a crabbed vision of gender equality that undermines the past achievements of Title VII - which had expanded work opportunities for women in traditional male jobs like bartending - by making it very difficult for women to challenge sex-based grooming policies. In particular, the article suggests that the cost of collecting reliable evidence on the cost and time of an employer's grooming rules, as well as the narrow notion of the burdens of gendered grooming requirements, will discourage challenges to such policies under the “unequal burdens” doctrine. More promising (but still costly) might be Title VII challenges under the “sex stereotyping” doctrine that draw on the wealth of social science evidence about how sex stereotypes and sex roles can affect perceptions about the competence, intelligence, prestige, and status of female workers. The article concludes that the Jespersen decision is likely to contribute to the “dumbing down” and “sexing up” of women's work in America and that the harms flowing from the court's narrow vision of gender equality are likely to fall on vulnerable groups of workers such as adolescent females and older men and women who are not “old enough” to be protected by the Age Discrimination in Employment Act.
I agree. Price Waterhouse was a huge step forward on the issue of sex stereotyping, but the circuits (with the sometimes exception of the Sixth) have been backsliding ever since.
October 25, 2007
The Brad Pitt of Psychiatry
Columbia University is facing a wrongful termination action from a child psychiatrist who alleges that he was forced out of his job. As the New York Times reports:
In the suit, filed last week in State Supreme Court in Manhattan, Dr. Peter Jensen, formerly the director of the Ruane Center for the Advancement of Children’s Mental Health at Columbia, contends that after he was hired by the university in 1999, Dr. David Shaffer, director of the university’s child psychiatry division, continually undermined his work. By making derogatory comments and subjecting Dr. Jensen’s work to unfair scrutiny, the lawsuit says, Dr. Shaffer helped force Dr. Jensen out of his job.
Dr. Jensen — who said that, among other things, Dr. Shaffer had called him “the Brad Pitt of psychiatry” — is seeking about $15 million in damages from the university.
The two men differed sharply in their professional goals and personal styles, according to several people who had been colleagues of both but who would not comment on the record because of the lawsuit. Dr. Shaffer, a renowned expert on suicide among children and adolescents, is considered restrained and scholarly by nature, and he focuses primarily on the study of biochemical causes of psychological problems, mainly depression. Dr. Jensen is, by his own admission, outspoken, a media favorite, and interested more in bringing psychiatric care to community settings than in basic research. He is best known for his work on attention deficit disorder.
Jensen also alleged that the university unjustifiably pushed ethics charges as a part of a campaign to get rid of him. In many ways, this case is fairly typical of workplace personality disputes and shows the difference between at-will and just cause regime. Without knowing more about his contract, I suspect that Jensen's case is a long-shot, but would be much stronger with just cause protection.
UFCW President Joe Hansen to Speak at Chicago-Kent
United Food & Commercial Workers President Joe Hansen will deliver the 8th annual Distinguished Labor Leader Lecture at Chicago-Kent College of Law. Hansen will address the “silent crisis of the economic decline of working America.” The program is co-sponsored by Chicago-Kent’s Institute for Law and the Workplace and the Chicago Federation of Labor. The lecture will be viewable via internet.
Bloch on Employment-Related Disability Benefit Schemes
Frank Bloch (Vanderbilt) has just posed on SSRN his article Disability and the Contract for Income Support in the Modern Welfare State. Here's the abstract:
In most countries with substantial disability benefit schemes, the number of beneficiaries has increased dramatically over the past twenty-five years; as a result, they are facing strong pressure to reform those schemes and to reduce the number of persons on the disability rolls. Some policy measures focus on reforming particular aspects of the relevant scheme, such as the amount of benefits or the process for determining eligibility. Others address broader issues, such as the definition of disability or the influence of demographic changes. Most, however, reflect a common pattern that signals a shift in emphasis toward the importance of individuals' employment opportunities and responsibilities and away from society's obligation to provide income support. This paper examines these current trends in disability policy, with particular reference to the influence that social contract theory can have on the structure and administration of reformed disability benefit schemes. Drawing on social contract literature that seeks to address the needs of persons with disabilities, the paper concludes that social contract theory can help guide social security policy makers toward implementing employment-related disability benefit schemes that are consistent with the needs of the modern welfare state.
Linder on the Haymarket Riot
Douglas Linder (U.M.K.C.) has just posted on SSRN his article The Haymarket Riot and Subsequent Trial: An Account. Here's the abstract:
When an anarchist--whose identity remains a mystery even today--tossed a homemade bomb into a great company of Chicago police at 10:20 P.M. on the night of May 4, 1886, he could not have appreciated the far reaching consequences his reckless action would have. His bomb, thrown in a light drizzle as the last speaker at a labor rally climbed down from the speaker's wagon, set off a frenzy of fire from police pistols that would leave eight officers and an unknown number of civilians dead, and scores more injured. It led to the nation's first Red Scare, refocused national labor and immigration policy, and set the stage for one of the most infamous trials in the history of American jurisprudence. The Haymarket Trial, the cause celebre for American radicals in the 1880s, produced death sentences for seven of Chicago's most prominent labor leaders--convicted more for their words than deeds at a time when the First Amendment provided scant protection against an outraged public.
Yale-New Haven Hospital on the Hook for Union Interference
And for a nice chunk of change (via Employment Law360):
Finding that it tampered with an election, an arbitrator on Tuesday ordered Yale-New Haven Hospital to fork over $4.5 million to the Service Employees International Union, capping a decade-long struggle over organizing efforts and leaving other employers nervous about binding arbitration provisions.
Following an alleged intimidation campaign by Yale-New Haven Hospital, the union's District 1199 called off its unionizing election last year, citing violations of a fair election...
So it sounds like Yale Hospital is about to face another union organizing campaign and this time they better be very careful how they fight it or else.
October 24, 2007
FMLA Waivers on Their Way to Supreme Court?
The good people at the SCOTUSblog not only do a fabulous job keeping every one current on everything U.S. Supreme Court, but they also like to get their hands dirty with actual cases. The latest:
The following post was written by Patricia Millett, who together with Tom Goldstein leads Akin Gump’s Supreme Court practice.
On Monday, we filed this cert petition which presents a question on which the Fourth Circuit has broken ranks with both the Fifth Circuit and the U.S. Department of Labor: whether a Department of Labor regulation, 29 C.F.R. 825.220(d), unambiguously and validly precludes the private settlement or release of claims under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq. That regulation provides that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.”
The case, Progress Energy, Inc. v. Taylor, arises out of a lawsuit brought by Barbara Taylor against Progress Energy, the parent company of her former employer, Carolina Power & Light Company, alleging violations of the FMLA. Two years earlier, however, Taylor released all of her claims under federal law, including the FMLA, in exchange for monetary compensation in a severance agreement. The district court held that the prior release of claims barred the suit. Taylor appealed. The Department of Labor filed an amicus brief in the Fourth Circuit supporting Progress Energy and explaining that its regulation prohibits only the prospective waiver of FMLA rights, not the retrospective waiver of claims asserting FMLA rights.
A divided Fourth Circuit held, however, that the lawsuit could go forward because it read the regulation as prohibiting any private release, waiver, or settlement of any FMLA claim - at least without the prior approval of the Department of Labor or a court. The Fourth Circuit refused to defer to the Department’s reading of its own regulation because the court was of the view that the regulation’s plain language forbids any waiver or release of claims. (The Fifth Circuit has ruled exactly the opposite, and has upheld the Department of Labor’s interpretation of its regulation.).
I would also put a retrospective waiver in a different category because there an attorney is more likely to be involved helping the employee and the employee is more likely to get something of value in return. I would also defer to DOL under Chevron as a reasonable interpretation of its own regulations.
Globalization, Flexibility, and Worker Protection
Kathy Stone has just posted on SSRN her chapter In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risk in the United States. The chapter is part of the forthcoming book Beverly Crawford & Michelle Bertho, Globalization Comes Home: How the United States is Being Transformed by Globalization. Here's the abstract of the chapter:
Globalization generates to increased competition between firms in the product market, which in induces firms to seek flexibility in their labor relations - flexibility to hire and fire on short notice, to increase or shrink the overall size of their workforce, to adjust pay to short-term performance results, to redeploy workers within the firm and to outside production partners, and to retain workers with particular skills on an as-needed basis. These practices are in tension with the labor law regimes throughout the Western world. In the United States, employers' drive for flexibility has fueled aggressive de-unionization efforts, and has induced employers to increase their use of temporary workers and independent contractors and to restructure pension and benefit plans. A crucial question for employment regulation thus becomes how to protect workers - how to mitigate their vulnerabilities and ameliorate the shifting risks that today's workplace practices impose. The author argues that other countries are experiencing the same tension between flexibility and worker protection, and suggests that we learn from other countries' efforts to devise mechanisms to preserve worker security at the same time relaxing traditional labor protective regimes.
History of ERISA Preemption
James Wooten (Buffalo) has just posted on SSRN two essays on the history of ERISA preemption. A Legislative and Political History of ERISA Preemption, Part I
recounts the key role of preemption issues in Congress's decision to pass ERISA. Until shortly before ERISA's enactment, employers and the AFL-CIO opposed comprehensive pension reform legislation. When states threatened to regulate private pension and welfare plans, however, the business community's and the AFL-CIO's strong desire for preemption all but forced them to support a federal pension reform law. Their support made passage of such legislation a virtual certainty.
explains how preemption issues led Congress to pass a broader pension reform law than it might otherwise have done. Business groups and the Nixon Administration hoped the congressional tax committees would limit the scope of federal regulation of pension plans. The congressional rules, however, gave jurisdiction over Congress's power to preempt state employment laws to the labor committees. Their control over preemption allowed the labor committees to bargain for broader regulation than business groups and the Administration preferred.
Both essays are published in Journal of Pension Benefits.
White House Suggests President Will Veto ENDA
White House participation in drafting the religious exemptions to ENDA led some ENDA advocates to hope that Bush wouldn't veto the bill. Wrong, says this Statement of Administration Policy:
"The bill raises concerns on constitutional and policy grounds, and if H.R. 3685 were presented to the President, his senior advisors would recommend that he veto the bill."
Hat tip: Workplace Horizons.
October 23, 2007
Solicitor General Recommends Supreme Court Hear Challenge to State Financial Accountability Acts
"State Financial Accountability Acts" prohibit public or private employers from using state funds "to assist, deter, or promote" union organizing. See, e.g., Cal. Gov’t Code §§ 16645-16649 (forbidding California employers who receive state grants or funds in excess of $10,000 from using such funding to “assist, promote, or deter union organizing").
Such laws have been recently found not to be preempted by the NLRA by the en banc Ninth Circuit in Chamber of Commerce v. Lockyer, 463 F.3d 1076 (9th Cir. 2006) (en banc), petition for cert. filed, 75 U.S.L.W. 3369 (U.S. Jan. 5, 2007) (No. 06-939), and the Second Circuit in Healthcare Ass'n of N.Y. State, Inc. v. Pataki, 471 F.3d 87 (2d Cir. 2006).
These laws help in preventing employee captive audience meetings (something I written about in a forthcoming piece in the Comparative Labor Law & Policy Journal) and related activities, but they are also suspect not only because of labor preemption concerns, but because they potentially prevents speech as opposed to just prohibiting attendance at mandatory workplace meetings.
Now comes word from SCOTUSblog that the Solicitor General has recommended that the Court review the Ninth Circuit case, now called Chamber of Commerce v. Brown:
The recommendation, filed [last] Friday in support of a Chamber of Commerce petition, argues that the National Labor Relations Act preempts the California statute, and that an en banc panel of the Ninth Circuit created a circuit split in holding otherwise. Click here to read the government brief, and the following links to read the petition, brief in opposition, and reply.
Look for the Court to grant cert. and overturn the Ninth Circuit. This decision could also have a detrimental impact on pending Worker Freedom Act legislation.