Saturday, March 8, 2008
For the second year in a row, team NKU Chase will meet team Michigan State in the final round of the Wagner National Labor & Employment Moot Court Competition at New York Law School. Congratulations to all competitors & coaches! The round will be webcast tomorrow here at 2:00 EST.
- Leilani O. Baumanis & Robert W. McGee, The Economic, Cultural, and Ethical Effects of International Outsourcing (72).
- Shae McCrystal, Smothering the Right to Strike: Work Choices and Industrial Action (31).
- Heike Schweitzer, Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (25).
- Richard L. Kaplan, Top Ten Myths of Social Security (230).
- Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (163).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (120).
- Albert Feuer, Who Is Entitled to Survivor Benefits From ERISA Plans? (73)
- Jesse M. Fried (photo above), Hands-Off Options (73).
Friday, March 7, 2008
Here's a writing opportunity for your students. Linda H. Edwards at Mercer sends out this notice:
It’s time to start thinking about inviting your students to compete for the Milani Award. As you know, Mercer and the ABA host an annual writing competition in honor of Mercer’s former legal writing professor, Adam Milani. It is one of the few student competitions for briefs – not academic papers. Prizes can be as high as $1,000.
Here are this year’s topics: disability law; the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; ADEA; FMLA; a state statute or municipal ordinance prohibiting discrimination on the basis of sexual orientation.
The deadline is June 1, and further information is on Mercer's website.
Our public schools are more segregated than is commonly recognized. Through an original empirical study of 157 school districts, this Article uncovers that teachers are re-segregating, just as students are. Many educators, policy makers, and legal scholars would find no fault with this resegregation because they disconnect integration from quality of education. The consequences of teacher segregation, however, remain uncharted territory in this debate over the value of integration. The resegregation of teachers exposes the truth of segregation - it continues to impede structural equality and helps to perpetuate white supremacy. Segregated teaching staffs, which put inexperienced white teachers in minority schools, are but one aspect of the inequality of segregation. Yet, this past term the Supreme Court legitimated the current segregation in our public schools in its landmark opinion, Parents Involved. Our society's refusal to recognize the transformative potential of integration is, however, more of an obstacle to equality than the Supreme Court. That is, until we identify integration with quality of education, the Supreme Court's refusal to do so is unimportant.
Thursday, March 6, 2008
In what is becoming increasing prevalent in modern labor disputes, Cintas has filed a RICO suit against UNITE HERE, Teamsters, and Change To Win in the Southern District of New York. The complaint alleges that the unions, in their attempt to get the employer to accept a neutrality and card check agreement, have engaged in an "extortion" campaign. This campaign was said to consist of false attacks on the employer and involve unlawful racketeering and infringements on the employer's trademark.
This isn't the first RICO suit filed by Cintas or numerous other employers (such as Smithfield and Wakenhut). Unions haven't been shy about using RICO either. This, of course, touches on a problem with courts' extremely broad interpretation RICO. However, I do wonder whether the Supreme Court's BE&K decision--which made is much more difficult for the NLRB to find that a lawsuit that was intended to harass the other party consisted of an unfair labor practice--has contributed to an increase in these suits. I don't know whether there even has been an increase, but I suspect ithat f there isn't already, there will be soon.
Hat Tip: Jason Walta
Henry Drummonds (Lewis & Clark), an expert in the area of NLRA preemption, has this legal analysis of the forthcoming Supreme Court oral argument in the NLRA Preemption case of Chamber of Commerce v. Brown in the February 2008 issue of CCH Labor Law Reports Insight:
After 50 years the time has come for a major reworking of labor law preemption doctrine to reflect the realities of the 21st Century. The private sector union movement is dying. Only management advocates believe today that the NLRB protects and fosters the right to organize and the right to refrain in an even-handed way. Unions now seek to avoid whenever possible NLRB processes and the politicalization of Board decision-making has become palpable. At the same time NLRA preemption doctrine ---entirely judge made----stifles experimentation in the sister sovereign states. While the mantra of a "uniform federal labor policy" continues in judicial opinions, labor law preemption now falls outside the non-preemption norm in a the broad sweep of workplace regulation (Title VII and other status discrimination statutes, the Occupational Safety and Health Act, Family Medical Leave Act, the Fair Labor Standards Act, etc). Why is a uniform policy so vital in labor law but not in wage and hour law, leave law, discrimination law, and workplace safety law? Even in its own terms the NLRA actually leaves the most important of all labor law issues ---the union and agency shop-- up to the states in the form of "right to work" laws. While reform may well have to come from the Congress, Chamber of Commerce vs. Brown provides the Supreme Court with a golden opportunity to modernize labor law preemption doctrine and square the Court's commitment to federalism and state sovereignty in other contexts with labor law's excessive assumptions about the efficacy and wisdom of an exclusive federal regime.
On a doctrinal level, several considerations point toward a ruling upholding the right of the people of California, acting thru their state legislature, to ensure that state tax monies are not used for pro or anti union speech by proselytizing employers. First, while often ignored, the Court has repeatedly expressed a strong presumption against preemption . Second, the California statute at issue in Chamber of Commerce does not prohibit employers from expressing their views about unionization to their employees---with their own money. Deciding the proper purposes for state funds fundamentally expresses the sovereignty of the states. Further, the summary judgment record discloses that the burden of accounting for state funds separately falls no heavier under the California statute than do many similar restrictions on the use of federal funds for certain purposes (for example Medicare funds). Nothing in the NLRA suggests that Congress meant to restrict the states from using state monies as the voters' elected representatives see fit. In doctrinal terms, the California statute simply does not under the Machinists doctrine interfere with the "free play of economic forces." Under the Garmon doctrine (incidentally, Garmon was a 5-4 decision with Justice Harlan writing a concurrence joined by three other justices disputing the broad primary agency jurisdiction rationale of Justice Frankfurter's opinion for a bare majority), morever, the California statute does not regulate anything arguably protected or prohibited by the NLRA ; the NLRB does not protect the right to use state funds to oppose or promote unionization, nor does the federal law prohibit the use of state funds to promote or oppose unionization. In any event, just as state statutes and common law regulate labor violence, the intentional infliction of emotional distress, malicious defamation, blockages of ingress and egress, and trespass to land (and other matters deeply rooted in local feeling) without running afoul of NLRA preemption, the power to control the use of state tax money has since the American Revolution ("no taxation without representation" ) been at the heart of state sovereignty and local control.
Well, not surprisingly for those three or four of you who have read my paper (thanks Mom!), Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, 29 Comp. Lab. L. & Pol'y J. 209 (2008), I couldn't agree with Henry more. I just hope that the Supreme Court Justices and their clerks read this blog.
BTW, kudos as well to my good friend, Michael Harper (BU), for also giving his comments in the article.
Best of luck to students and coaches competing in the Wagner National Labor & Employment Law Moot Court Competition!!! The competition begins today and runs through this Sunday. The final round will be webcast live on Sunday here.
Harry Hutchison (George Mason) has just posted on SSRN his article (forthcoming Virginia L. Rev.) The Market for Union Representation: An Information Deficit or Rational Behavior?. Here's the abstract:
In his forthcoming Virginia Law Review article, Information and the Market for Union Representation, Professor Matthew Bodie asserts the NLRB's model fails to ensure the inclusion of sufficient relevant information. Offering a "purchase of services" paradigm as an alternative way to understand the decision to choose or refrain from choosing to join a union, Bodie conceives the representation election as a collective economic decision rather than the end result of a political campaign. In order for the market for union representation to function satisfactorily, adequate knowledge is required. Professor Bodie tenders a provisional solution: mandatory disclosure aimed at boosting public confidence in the market for union representation.
Although Professor Bodie's approach is a welcome addition to the literature, it suffers from a few shortcomings. First, labor unions have historically opposed transparency. They are unlikely to welcome additional disclosure initiatives. Second, his proposal appears to offer a constrained conception of capture that concentrates on employers. Public choice shows that the possibility of capture, grounded in self-interest, is not limited to employers. A more robust conception of capture would include union hierarchs and their ideological allies who see unions as a staging area for the achievement of ideological goals that few workers share. Third, Bodie's article offers a prevailing but contestable conception of free-riding that appears to overestimate the economic benefits that workers receive from unions. Lastly, Professor Bodie appears to underestimate the capacity of workers as autonomous and adaptive principals to acquire adequate information about the cost and benefits of unionization over a period of time. Even within the existing disclosure framework, workers respond to the information provided by the market, by choosing, or more likely by declining to choose union representation.
Wednesday, March 5, 2008
Here is a remarkable story, highlighted by the Freedom for Individual Rights in Education's (FIRE) The Torch, and brought to my attention by Dennis Nolan (South Carolina):
In a stunning series of events at Indiana University - Purdue University Indianapolis (IUPUI), Keith Sampson, a university employee and student, has been charged with racial harassment for reading a book during his work breaks.
Sampson is in his early fifties, does janitorial work for the campus facility services at IUPUI, and is ten credits shy of a degree in communication studies. He is also an avid reader who usually brings books with him to work so that he can read in the break room when he is not on the clock. Last year, he began reading a book entitled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan. The book, which has garnered great reviews in such places as The Indiana Magazine of History and Notre Dame Magazine, discusses the events surrounding two days in May 1924, when a group of Notre Dame students got into a street fight in South Bend with members of the Ku Klux Klan. As an historical account of the students' response in the face of anti-Catholic prejudice, the book would seem to be a relevant and worthwhile read, both for residents of the state of Indiana and for anyone interested in this chapter of American history.
But others at IUPUI clearly did not see it that way. First, a shop steward told Sampson that reading a book about the KKK was like bringing pornography to work (apparently this holds true in his eyes regardless of the context in which a book discusses the KKK, the position it takes, and so on). Likewise, a co-worker who happened to be sitting across the table from Sampson in the break room remarked that she found the KKK offensive. On both occasions, Sampson tried to explain what the book was really about. Both times, the other individual refused to listen.
A few weeks later, Sampson was notified by Marguerite Watkins of the school's Affirmative Action Office (AAO) that a co-worker had filed a racial harassment complaint against him for reading the book in the break room. Once again, he attempted to explain the book's content, but Watkins too had no interest in hearing it. Despite his not being given a chance to defend himself, he subsequently received a letter from Lillian Charleston of the AAO, dated November 25, 2007, informing him that AAO had completed its investigation of the matter. The letter stated,
You demonstrated disdain and insensitivity to your coworkers who repeatedly requested that you refrain from reading the book which has such an inflammatory and offensive topic in their presence...you used extremely poor judgment by insisting on openly reading the book related to a historically and racially abhorrent subject in the presence of your Black coworkers.
It went on to say that according to "the legal 'reasonable person standard,' a majority of adults are aware of and understand how repugnant the KKK is to African-Americans..." As a result of AAO's findings, Sampson was ordered to refrain from reading the book in the immediate presence of his co-workers and to sit apart from them whenever reading it.
To paraphrase EMF: "That's Unbelievable." So wrong on so many level, it reminds me of this blog post from the past. And the issues are not limited to employment discrimination ones, but also raise issues of prior restraint, freedom of speech and expression, the ability of an employer to control the off-duty conduct of an employee, and the allegedly one-sided nature of the investigation. Both Eugene Volokh and David Bernstein have highlighted the dangers that an over-aggressive application of employment discrimination laws poses for First Amendment rights in the public employment context.
Let's hope that wiser heads prevail and this disciplinary action is overturned by those who understand the purpose and policy behind employment discrimination laws.
The EEOC reports that the number of discrimination charges it receives rose 9% in fiscal year 2007. The largest increase was in retaliation claims (up 18%), followed by age claims (up 15%). Claims in all categories rose significantly, and it appears that charging parties are filing more claims per charge than they have in the past. For a summary of the numbers, see the EEOC's press release; for all the data, see the EEOC's Fiscal Year 2007 Enforcement and Litigation Statistics.
Here's the abstract:
There is a double standard at work in employment discrimination cases. While courts frequently reject otherwise actionable sex discrimination claims brought by lesbians and gay employees on the grounds that sexual orientation is not protected under Title VII, no court has ever ruled this way in a case brought by a heterosexual employee. What explains this double standard? The conventional wisdom is that heterosexual employees do not face discrimination on the basis of their sexual orientation. In this Article, I offer a different explanation, one that is rooted in the cultural invisibility of heterosexuality in our society. Because we tend not to think of heterosexuals as having a sexual orientation, courts are unable to see when an employee's sex discrimination claim implicates her heterosexuality. As a result, heterosexual employees are simply not at risk of losing their sex discrimination claims because of their sexual orientation. Thus heterosexuality and homosexuality are not similarly situated under Title VII. Whereas lesbian and gay employees are burdened by their sexual orientation in employment discrimination law, heterosexual employees are, in effect, privileged by theirs.
I had the privilege of hearing Zak give versions of this paper twice: once at a faculty workshop at my law school and once at the Second Annual Colloquium in Colorado. It is a thought-provoking piece and I recommend it highly.
Nevada Law Journal
Volume 8, Number 1, Fall 2007
Symposium: Rethinking The Federal Arbitration Act: An Examination of Whether and How The Statute Should be Amended
[Only the employment-related articles are listed here.]
- Christopher J. Kippley & Richard A. Bales (left), Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers, p. 10.
- Michael Z. Green, (second) Measures to Encourage and Reward Post-Dispute Agreements to Arbitrate Employment Discrimination Claims, p. 58.
- Jean R. Sternlight (third), In Defense of Mandatory Binding Arbitration (If Imposed on the Company), p. 82.
- David S. Schwartz (right), If You Love Arbitration, Set it Free: How ‘Mandatory’ Undermines ‘Arbitration’, p. 400.
Today's Wall Street Journal reports on a new test that defense attorneys are using to distinguish malingerers from the truly injured. Though the article focuses on the use of the test in personal injury cases, we employment types know that such tests also are used in employment litigation. Here's an excerpt of the WSJ article:
A test designed to expose fakers is roiling the field of personal-injury law, distressing plaintiffs and strengthening the hand of employers and insurers.
Proponents hail the true-or-false test as a valid way to identify people feigning pain, psychological symptoms or other ills to collect a payout. In hundreds of cases, expert witnesses have testified that the test provided evidence that plaintiffs were lying about their injuries, just as suggested by the test's colorful name: the Fake Bad Scale.
Use of the scale surged last year after publishers of one of the world's most venerable personality tests, the Minnesota Multiphasic Personality Inventory, endorsed the Fake Bad Scale and made it an official subset of the MMPI. According to a survey by St. Louis University, the Fake Bad Scale has been used by 75% of neuropsychologists, who regularly appear in court as expert witnesses.
But now some psychologists say the test is branding as liars too many people who have genuine symptoms. Some say it discriminates against women, too. In May, an American Psychological Association panel said there appeared to be a lack of good research supporting the test.
Tuesday, March 4, 2008
Effective July 1, 2008, Indiana public employers and private employers that employ six or more individuals shall provide for reasonable paid breaks for an employee to express breast milk for the employee's infant child. S. 219, L. 2008, enacted February 27, also includes provisions relating to sanitary, private locations for employees to express breast milk, and storage concerns.
Is this the start of a trend? Let's hope so.
Marion Crain, currently at North Carolina, has accepted a senior offer from Washington University in St. Louis. There she joins a slew of other fantastic labor / employment types, such as Sam Bagenstos, Pauline Kim, Laura Rosenbury, and Dean Kent Syverud. In attracting Marion, Wash U. has positioned itself as a fantastic place to teach -- and to study - labor and employment law.
Marion is the Paul Eaton
Professor of Law and Director of the UNC Center on Poverty, Work and
Opportunity, founded in 2005 by Senator John Edwards, its first
Director. She teaches labor law, employment law, family law, and
feminist legal theory. Marion's scholarship examines the
relationship between gender, work and class status, with a particular
emphasis on collective action. She has authored or
coauthored over 25 law review articles and two book chapters. She is
the author of two textbooks, LABOR LAW: CASES AND MATERIALS (with
Theodore St. Antoine and Charles Craver), and WORK LAW: CASES AND
MATERIALS (with Pauline Kim and Mike Selmi), both published by Lexis
Law Publishing. She is a coeditor, together with Senator John Edwards
and Professor Arne Kalleberg (UNC Sociology), of a commercial press
book: Ending Poverty in America: How to Restore the American Dream (The New Press, 2007).
Marion earned her B.S. at Cornell University and her J.D. at the UCLA
School of Law. Before entering law teaching, Professor Crain clerked
for the Honorable Arthur L. Alarcon on the U.S. Court of Appeals for
the Ninth Circuit and practiced with Latham and Watkins in Los
Angeles. She held regular faculty positions at West
Virginia University and the University of Toledo prior to joining the
UNC-Chapel Hill faculty. She has been a visiting professor at the
University of Michigan, George Washington University, and the
University of Alabama. Marion serves on the
Executive Committee of the Labor Law Group, a national collective of
law professors dedicated to advancing pedagogy and scholarship on labor
and employment law. She is Treasurer and Program Chair for the Group,
as well. In addition, she serves on the editorial Board of the
Employee Rights and Employment Policy Journal, a peer-reviewed journal
focusing on labor and employment law. Marion is a past chair
of the AALS Section on Labor and Employment Law.
Marion earned her B.S. at Cornell University and her J.D. at the UCLA School of Law. Before entering law teaching, Professor Crain clerked for the Honorable Arthur L. Alarcon on the U.S. Court of Appeals for the Ninth Circuit and practiced with Latham and Watkins in Los Angeles. She held regular faculty positions at West Virginia University and the University of Toledo prior to joining the UNC-Chapel Hill faculty. She has been a visiting professor at the University of Michigan, George Washington University, and the University of Alabama.
Marion serves on the Executive Committee of the Labor Law Group, a national collective of law professors dedicated to advancing pedagogy and scholarship on labor and employment law. She is Treasurer and Program Chair for the Group, as well. In addition, she serves on the editorial Board of the Employee Rights and Employment Policy Journal, a peer-reviewed journal focusing on labor and employment law. Marion is a past chair of the AALS Section on Labor and Employment Law.Congratulations, Marion! And congratulations, Wash U.!!!
Monday, March 3, 2008
Thanks so much for the lovely intro, Paul and thanks to all three guys for letting me guest blog for a bit. I'll start my stint by opening a can of worms that many wish I'd leave shut. Last week, Eric E. Johnson at Prawfsblawg suggested that law firm associates should organize. The post and comments that followed made several excellent points that I won't rehash here, but I'd like to follow it up and ask a related question: why don't legal writing faculty organize?
Many of us work at schools that operate a two (or more) tiered system for permanent faculty. There are doctrinal professors who are usually tenured or on a tenure track and who govern themselves through majority rule. Many schools also have clinical professors, who may be on a separate tenure track or who may have long-term contracts that operate similarly to a system of tenure and who also may vote. Then there is the legal writing faculty. While some are tenured or on a tenure track or similar system, many are not. Legal writing faculty aren't required by the ABA's accreditation standards to be given job security similar to tenure, although they are required to be given enough security to retain quality faculty. They tend to be paid significantly less than their doctrinal colleagues, have relatively large classes that require a great deal of individualized work with students, and often they lack a vote in faculty governance. Legal writing faculty also tend to be predominantly women. The Association of Legal Writing Directors (ALWD) and the Legal Writing Institute (LWI) compile figures annually assessing status, pay, and similar issues. Here is the most recent data, if you're interested.
Given the status differential, and the struggles of these folks in their schools, why aren't they organizing? Since the bar demands graduates with well developed writing skills, I would think that the legal writing faculty would wield significant power if they threatened to strike. Some have suggested that organizing would be the worst thing that the legal writing faculty could do because it would cement and legitimize the status differential by signaling that the legal writing faculty desired some kind of different status. Some have suggested that the type of person who goes into legal writing tends to be more easily exploitable and might feel less comfortable taking this kind of stand and organizing.
I think that it's a nearly perfect way to resolve the status issue. Often the status issues come down to the right to vote--the other things follow from that. And we know from NLRB v. Yeshiva that in private universities, professors who govern themselves (vote) are considered management and unable to organize. So, to bust the unions, schools might be more likely give the legal writing faculty the vote. If they don't, the worst that happens is that the legal writing faculty organizes and enters into collective bargaining and betters their status that way. Either way, it seems to me, would be a better result. I'd love to hear others' perspectives.
MM (Marcia McCormick)
You know, if the Supreme Court really wanted to I guess they could fill a large part of their docket with mind-boggling ERISA cases. It hasn't quite reached that extent, but another one might actually be on the way to being reviewed by the Supreme Court.
The Court asked for the federal government’s views in two pending cases: Amschwand v. Spherion Corp. (07-841) and Harbison v. Bell (07-8521.) The Amschwand case tests whether a participant or beneficiary in an ERISA health benefits plan may sue for the insurance benefits that would have been available but for a violation of a plan administrator’s duty.
Not surprisingly, another ERISA remedies case trying to make sense of the comprehensive and reticulated scheme that Congress established.
Colleen Medill (Nebraska), sometime guest blogger on these pages, has posted Participant Perceptions and Decision-Making Concerning Retirement Benefits on the Center for Retirement Research at Boston College webpage.
Here's the abstract:
From 1964 until 2002, the State of Nebraska sponsored a defined contribution plan for its employees. During this period, the plan was unique among state pension plans because it was an individual account-type plan that offered participants the choice of a lump sum or annuity distribution upon retirement. Such a choice presents the opportunity to learn more about how individuals perceive financial risks and weigh various factors when deciding how to access their retirement benefits. This study reports the results of a new survey of Nebraska state workers who retired or terminated employment in 1997. The results offer a perspective on how individuals perceive their decisions 10 years later. The findings reveal three general themes. First, retirees tended to underestimate the financial risks associated with uninsured health care expenses. Sixty-five percent of retiree respondents said that they had initially underestimated such risk. Second, federal policies may influence the distribution decision. For example, many respondents cited tax penalties on lump sum distributions as a major factor in their decision, which is consistent with a high percentage choosing a nontaxable direct rollover distribution. Finally, the results provide a basis for cautious optimism that retirees will be able to successfully manage a present value sum distribution during retirement. Over 90 percent of retiree respondents reported that they were able to cover their living expenses 10 years after their retirement.
A timely article as more retirement plan participants are shifted to defined contribution plans. And I am happy to see there is new reason for cautious optimism in this area, as previous signs suggested that defined contribution plans are leading this country into another retirement savings debacle.
To those who believe that the bad ol' days of segregation and unequal treatment of minorities is behind us, I give you this story from the LA Times about retired black police officers in Georgia who are still trying to get a remedy for past injustices:
A "whites only" sign was still hanging on the precinct house water fountain in 1964 when James Booker joined the suburban College Park police force. He soon learned it wasn't the only thing off limits to
Georgia 's new black recruits.
Until 1976, black officers were blocked from joining a state-supported supplemental police retirement fund. Today, white officers who entered the fund before that year are taking home hundreds of dollars more every month in retirement benefits than their black counterparts.
The now-retired black officers have been lobbying hard to change that, but eight years after they began an effort to amend the state constitution and give them credit for those lost years is stalled in the Legislature. The Georgia Constitution prohibits the state from extending new benefits to public employees after they have retired.
If lawmakers don't take action in the final weeks of the legislative session, the battle will move to the courthouse this spring, said state Rep.Tyrone Brooks, an Atlanta Democrat and civil rights activist leading the officers' campaign.
Come on, Georgia, do the right thing. Give these police officers who gave the best years of their lives the pension payments they have always deserved. If not, this situation will continue to be an unwelcome reminder that much still has to be accomplished in the area of racial justice in the workplace.