Saturday, March 15, 2008
- Richard L. Kaplan, Top Ten Myths of Social Security (240).
- Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (171).
- Edward A. Zelinsky (photo above), Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (127).
- Jesse M. Fried, Hands-Off Options (81).
- Albert Feuer, Who Is Entitled to Survivor Benefits From ERISA Plans? (77)
Friday, March 14, 2008
My zany, yet super-cool friend, David Zaring (Wharton) alerts me to a new workplace law book of sorts on the Conglomerate Blog:
In Punching In, Alex Frankel took a bunch of different front-line jobs with massive American companies (for instance, at The Gap, which hires 135,000 people, and Starbucks, which hires 130,000) and reported back on what the experience is like. He rode trucks for UPS, tried unsuccessfully for gigs at Whole Foods and The Container Store, picked up customers for Enterprise Rent-a-Car, you get the idea. The book tries to sort out what corporate culture is, and whether it matters, though you're not going to write a book about corporate culture if you don't think it matters. The verdict on UPS is quite positive, with esprit, elan, and high tech everywhere. Enterprise sorta comes across as a Ponzi scheme selling corporate advancement, as well as cars and insurance. The Gap is a hell of constantly unfolded clothes. Starbucks is team-oriented and seriously busy. Apple is a cult that Frankel likes.
With these kinds of memoirs, with the names changed, the locations obscured, and so on, the question is often: how much of this is fiction? Frankel's book didn't seem very fictional, but it also wasn't quite enough fun. His totally plausible experiences lacked interesting story arcs. It is impressive that he actually worked all these front line jobs, but he seemed peeved and/or journalistically neutral about the experiences, not lapidary and engaged. Fans of this sort of literature might enjoy Ben Cheever's Selling Ben Cheever even more.
Great stuff. But why didn't Frankel try to get a job at Wal-Mart and then attempt to buy health insurance?
Ross Runkel's Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008), a case discussing the permissibility of drug testing public employees.
Ross summarizes the case:
Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier's favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part - concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.
The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them. The court rejected that argument, reasoning that the United States Supreme Court's decision in Chandler v. Miller, 520 US 305 (1997) "makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited." The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be "special" and not merely "symbolic."
I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees' Fourth Amendment rights to be free from unreasonable search and seizure.
The use of the word "symbolic" in the court's decision brings to mind Justice Scalia's dissent in the Von Raab case concerning federal custom agents. Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee's 4th Amendment rights for symbolic purposes.
The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area. It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.
Mitch Rubinstein (adjunct at St. John's and NYLS and of Adjunct Prof Blog fame) has just posted on SSRN his article Mendelsohn v. Sprint/United Management: The Supreme Court Appears to Punt Whether "Me Too" Evidence is Admissible ... Or Does It?. Here's the abstract:
This Essay discusses the use of "me too" evidence where parties, usually plaintiff's, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination as well as the U.S. Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn.
The use of "me too" evidence has proven to be controversial. Indeed, employment discrimination cases often turn on whether a plaintiff has been able to come up with an appropriate "comparator" who was treated differently than he or she was.
Though scholars who have had the opportunity to opine about the Sprint case have charactered the U.S. Supreme Court decision as a "judicial punt" because of its remand on procedural grounds, this Essay asserts that this decision is going to turn out to be significant to the developing jurisprudence involving employment discrimination. This is principally because of dicta in Justice Thomas' unanimous per curiam opinion which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible "me too" evidence, it is clear that the Court rejected any type of rule which would flatly prohibit the introduction of such "me too" evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.
Mitch's essay is well worth reading -- check it out!
Thursday, March 13, 2008
Timothy Glynn (Seton Hall) has just posted on SSRN his article Interjurisdictional Competition in Enforcing Noncompetition Agreements: Regulatory Risk Management and the Race to the Bottom. Here's the abstract:
This Article explores the possibility that one state could effectively eliminate the employment-law protections guaranteed by other states. If employers can incorporate by reference that state's law into their employment contracts, such an effective nullification could occur. An established trend in corporate law, this kind of regulatory risk management may soon endanger employee protections if policymakers fail to recognize and respond to the threat.
The phenomenon of states engaging in a regulatory race to the bottom in pursuit of business activity is familiar. Because firms take into account employment and labor standards (or the lack thereof) in deciding where to establish operations, states have incentives to maintain employer-friendly legal environments to attract business. While academics have long studied the potential effects of such territory-based competition on worker welfare, this Article considers another type of interjurisdictional competition that has received little attention in the employment-law literature. This variety is extraterritorial in nature: a state seeks to benefit by selling its law as a commodity to firms operating, in whole or in part, outside of its territory. Already common in corporate law, it is now emerging in employment contracting. By frustrating state-level employee protections, such competition could have dangerous implications for workers.
This Article examines why law-as-commodity competition is pervasive in the corporate area but, until recently, largely absent in employment contracting. To illustrate the changing dynamic, it then identifies the conditions favorable to competition in the enforcement of noncompetition agreements and considers other areas where this kind of competition could emerge.
How can states defend their workers and regulatory interests against the application of employer-friendly states' law within their borders? States have the power to reject contractual choice-of-law clauses, but this alone is not enough. Policymakers must also understand how firms and competing states might attempt to defeat local policy preferences through litigation techniques and aggressive judicial conduct. A state's failure to respond strategically to the rise of such a cooperative venture between firms and a competing state will result in creeping nullification of protections for local workers.
This is a great article on an important topic. I've argued that an interjurisdictional race to the bottom may have explained the spread of the employment-at-will rule. Glynn points out that such races could extend to noncompetes and beyond.
Wednesday, March 12, 2008
Last October, I had the distinct honor to take part in the Seton Hall Second Annual Employment & Labor Scholars' Forum. It was a rare opportunity to have an intimate group of both senior and junior labor and employment law scholars
tear my paper apart provide comprehensive and constructive criticisms to help me improve an article I was working on at the time.
Tim Glynn (Seton Hall), one of the organizers of the event, now sends word of a Call for Proposals for the Third Annual Employment & Labor Law Scholars' Forum, which will take place at Seton Hall Law School from October 17-18, 2008.
Here is the solicitation letter:
Building on the successes of the last two years, the Seton Hall Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while assisting more experienced scholars to understand and appreciate new scholarly currents.
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.
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 all 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 April 15, 2008. Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall University School of Law, One Newark Center, Newark, NJ 07102 or
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 1, 2008.
For further information on, visit their forum website.
I argue strongly in a recent paper that it is inappropriate for employers to provide workplace chaplains in the workplace for their employees:
In addition to political speeches, more companies are hiring ministers to serve their workers. Some critics believe that these ministers have another agenda – to convert. Evangelical Christian organizations are offering Christian ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees' religious affiliations are becoming part of the American workplace.
A number of companies have been formed to provide employer-sponsored religious services to employees, including Marketplace Ministries, Corporate Chaplains of America, Workplace Chaplains, and Chaplains at Work. For instance, Marketplace Ministries, Inc., now has 1700 chaplains and makes on-site visits to 300 companies in 38 states. Marketplace Chaplains U.S.A. employed 1,629 chaplains last year.
While the accommodation of voluntary religious observance in the workplace is certainly not objectionable, this growing corporate sponsorship and encouragement of religious observance creates a significant danger of compulsion. The agencies with which employers contract to provide religious services may also have a deeply held mission that may lead them to borrow employers’ authority over employees in order to gain an audience. Although limits exist on the ability of employers to proselytize in the workplace under Title VII and parallel state anti-discrimination law, the relative lack of cases in this area suggest that employees do not yet feel comfortable fighting back against these workplace practices.
A few days ago, CNN.com had an article on the same topic:
Religion, like sex and politics, once was considered inappropriate watercooler talk. Not anymore. Prayer sessions, religious diversity groups and chaplains like Reece, along with rabbis and imams, have become more common across corporate America in the past decade.
Fifty percent of those questioned in a 2002 Gallup poll said religious expression should be tolerated in the work place while another 28 percent thought it should be encouraged. That's compared to 21percent who didn't see a place for religious expression on the job.
I might be in the minority here, but I am as well as far as being part of a minority religion too (Jewish). Perhaps, I see compulsion where others don't, but I think employers should be very circumspect in encouraging religious observance in the workplace and potentially alienating many workers.
Hat Tip: Courtney Leyes
Raja Raghunath is the Civil Rights Clinical Fellow of the Student Law Office at University of Denver, Sturm College of Law. Raja received his J.D. from the University of Michigan Law School and his B.A. from Duke University. Before beginning his teaching career, Raja was an associate at Cleary Gottlieb Steen & Hamilton LLP in New York, New York, where his practice focused primarily on securities enforcement and bankruptcy litigation matters. His pro bono practice included federal wage and hour litigation on behalf of undocumented immigrant restaurant workers and guardianship proceedings in New York State Family Court. Raja also worked as a labor lawyer at Gilbert & Sackman, A Law Corporation, in Los Angeles, California, representing unions, unionized workers, and jointly-trusteed labor-management employee benefit funds in federal and state administrative and judicial forums.
The title is no doubt wishful thinking, but a recent Seventh Circuit decision has raised the possibility that the court may be willing to take a different view of discriminatory solicitations. If true, there's a large dose of irony here, as in its recent Register-Guard decision, the NLRB recently adopted the Seventh Circuit's approach. That approach stated (in the court's Guardian Indus. decision) that an employer discriminates in its enforcement of an otherwise valid no-solicitation rule only if its enforcement favors one union over another or allows anti-union messages, but not pro-union ones.
In St. Margaret Mercy Healthcare Centers v. NLRB (March 11, 2008), the court appears to have taken a different tact. The case involved a hospital's enforcement of a valid no-solicitation rule against pro-union soliciting, despite allowing numerous charitable solicitation and at least one commercial solicitation (which involved, as the opinion by Judge Posner seemed to take great pleasure in describing, a balm to help bikini line irritation). The hospital's stated reason was that it didn't want patients disturbed. The court rejected the employer's argument that allowing charitable solicitation, but not union ones, wasn't discriminatory:
It is true, as a Board member pointed out in dissent, that with the exception of the balm the solicitations were charitable or social rather than commercial. But what difference can that make? The hospital’s rule forbids solicitations in patient care areas, period, yet the only solicitations that have ever drawn a rebuke from management are, as the hospital’s lawyer acknowledged at argument, those in support of union activities. Moreover, it is far from obvious that a patient in intensive care will be less disturbed by a nurse hawking bikini lotion or organizing a birthday party than by a union organizer.
Patients, especially those in intensive care, and their family members and friends, would like to think that nurses when on duty give their exclusive attention to their professional duties and are not distracted by engaging in charitable, social, or commercial activities. The singling out of the union-supporting nurse for rebuke was discrimination against union activities.
That holding makes perfect sense to me, although it flies in the face of the court's Guardian rule. I'd like to think that this marks the beginning of the end for Guardian, but there are a few reasons not to be so optimistic. First, as the court noted, the hospital's stated need to limit solicitations broke down as a factual matter--if annoying patients is a concern, all solicitations are a problem and there remained the easy solution of requiring breakroom doors to be closed. Second, the opinion noted that the employer had only enforced the rule against pro-union solicitations. There is no indication of any anti-union solicitations, but one could argue that this emphasis in the opinion keeps it consistent with Guardian. Finally, this is a classic Judge Posner opinion: strong on common sense, but weak on research. The bulk of the opinion has no citations at all and there is not even a hint of recognition of a possible conflict with Guardian. So, we'll have to wait and see if this case is an anomaly or a harbinger of things to come. Either way, it's interesting that the court relied upon by the Board in Register-Guard has written an opinion on why the extraordinarily narrow discrimination approach is not a good one.
Raja Raghunath (Clinical Fellow at Denver) has just posted on SSRN his article Stacking the Deck: Privileging "Employer Free Choice" over Industrial Democracy in the Card Check Debate. Here's the abstract:
"Card check" organizing is the most controversial issue in labor law today, and this article is the first to analyze Dana Corp., the landmark decision on card check that was issued by the National Labor Relations Board in September 2007. The Dana Corp. decision represents a fundamental shift in American labor relations, away from safeguarding the rights of employees to collectively bargain, and towards safeguarding employer choice as to whether to engage in collective bargaining at all. The purpose of this article is to call attention to this shift, and to refocus the card-check debate on the fundamental principle of asymmetrical employer power in the workplace. The importance of this principle in understanding the arguments surrounding card check is heightened by the shift in labor relations signaled by the Dana Corp. decision, as well as two significant recent developments in the California and Illinois public sector that also have gone unanalyzed.
This article highlights the sharp contradictions between Dana Corp. and settled decisions of the Supreme Court regarding employer power and card authorizations, and argues that the principle of asymmetrical employer power, central to the National Labor Relations Act, has been largely lost in the current debate. This article does not evaluate the validity of the arguments for and against card check, but rather seeks to draw attention to what those arguments reveal about the perspectives the parties making them have regarding the system of labor relations as a whole.
Raghunath's article is the first to analyze the NLRB’s Dana Corp. decision from September of last year. It makes the important argument that Dana Corp. represents a fundamental shift in labor relations towards a focus on employer choice as to whether to engage in collective bargaining.
Tuesday, March 11, 2008
Michael Dorff (Southwestern) has just posted on SSRN his article The Rational Choice Myth: The Selection and Compensation of Critical Performers. Here's the abstract:
Some positions within an organization wield unusual impact over the entity's success. The decision makers who hire these critical performers face a daunting task: to distinguish among closely comparable finalists in a context where small differences in talent can produce enormous outcome divergences. I apply research from psychology and behavioral law and economics to argue that decision makers demonstrate unwarranted confidence in their ability to distinguish among nearly identical candidates. The illusion of validity, representativeness bias, insensitivity to predictability, and the fundamental attribution error all impede decision makers' ability to make these fine distinctions. Once they have made a selection, cognitive dissonance induces inappropriate confidence in the outcome's validity and promotes excessive compensation. Involving a group in the decision may worsen these effects by imbuing outcomes with the false veneer of market legitimacy through social cascades and by discouraging contrary views through excessive consensus or groupthink.
I examine two types of critical performers with these insights: professional baseball players (where individual contributions to the enterprise can be measured directly) and public company CEOs (where they cannot). I conclude that in both contexts, these phenomena produce inefficient selection and compensation outcomes. While the relative absence of externalities argues against mandatory regulation in baseball, I propose changes in private ordering that should improve efficiency. In the corporate context, I argue that regulation is called for and propose a combination of mandatory compensation caps linked to firm size and a reverse auction among CEO finalists to determine the successful candidate.
I really enjoyed this article, and couldn't help thinking about how it might apply to hiring in the legal academy. For example, Dorff states:
Once [a Board of Directors has chosen the new CEO], the directors have a ... strong emotional incentive to bolster their confidence that the decision was correct. In order to reduce the psychological discomfort stemming from uncertainty in the face of a critical decision, the directors are likely to exaggerate the distinctions between the winning and losing candidates. They are unlikely to bear in mind the difficulties involved in predicting future performance based on the available data. Instead, they will remain insensitive to the predictability of the new CEO’s future performance and assert that they have made the clearly correct decision.
This sounds to me remarkably like the way we traditionally hire entry-level law faculty. Our predictors of future success, such as the prestige of law school attended, are an empirically poor predictor of future performance, so we convince ourselves that we have found a star, then are loath to recognize, even years down the road, evidence indicating otherwise. Dorff suggests:
Boards should choose a small group of finalists based on traditional criteria, all of whom they deem acceptable. They should then negotiate compensation with each member of the group, making clear that they will choose the candidate who proves most reasonable. If boards cannot manage the production side of the equation, they should at least minimize cost. In choosing from a CEO from among equivalently credentialed candidates, boards are effectively buying a lottery ticket. Since each ticket has the same chance of winning, the highest expected value comes from bargaining down the price of the ticket, not from trying to predict which number will be drawn.
So, to continue the analogy to entry-level law teachers, the faculty should recommend to the dean a slate of candidates, and then let the dean do some bargaining.
Dorff's focus is on money, which makes sense given that he's writing about CEO and baseball salaries. But in the market for entry-level law teachers, there may be more important things that a school could bargain for, such as institutional service and a commitment to innovative teaching.
Monday, March 10, 2008
West Virginia's 2008 legislature was expected to adjourn March 8 without adopting a measure (H.B. 4132) that would have banned employers from holding compulsory meetings to present their views on political or labor issues.
The legislation earlier this month passed the West Virginia House of Delegates (41 DLR A-13, 3/3/08), but the chairman of the Senate's Judiciary Committee said March 5 it would not emerge from committee before adjournment.
Chairman Sen. Jeffrey Kessler (D) told the committee he had decided not to advance the bill because a case pending before the U.S. Supreme Court--Chamber of Commerce of the United States v. Brown, U.S., No. 06-939--could invalidate West Virginia's "confined speech" law soon after it went into effect.
Calling the bill "a very contentious piece of legislation," Kessler said the high court's decision, expected later this year, could affect how employers communicate with workers. The issue before the Supreme Court is whether a California law barring employers from using state funds to assist or deter union organizing is preempted by the National Labor Relations Act.
I am clearly disappointed by this development and I do not believe the decision in Brown will dictate whether Worker Freedom Acts survive First Amendment and NLRA preemption scrutiny. On this topic, I wrote in my recent article:
Although these laws [Brown-type laws] could also help in preventing employee captive audience meetings, their focus is both broader and narrower than captive audience bills; broader in applying to many more labor activities, but narrower in only applying to employers that receive state funds. They also concern legislation that potentially prevents speech as opposed to just prohibiting attendance at mandatory workplace meetings.
So, I disagree completely with Senator Kessler and wish they had allowed the West Virginia Senate to vote on the bill.
Congratulations to Zak Kramer (Arkansas-Little Rock) who has just accepted a lateral offer from Penn State, the Dickinson School of Law. Zak will be located at the University Park campus starting in the Fall.
Zak joined UALR in 2006. He teaches Property, Legislation, and a seminar on Law and Human Sexuality. Before coming to UALR, he was the inaugural Williams Teaching Fellow at UCLA School of Law, where he taught Law & Sexuality in the law school and the Jurisprudence of Sex Equality in the Women's Studies department. Professor Kramer joined UCLA immediately after graduating, magna cum laude, from the University of Illinois College of Law, where he was the editor-in-chief of the University of Illinois Law Review. Professor Kramer's research explores the law of everyday life—work, family, and sex.
Zak's publications include:
Heterosexuality and Title VII, 103 Northwestern L. Rev. (forthcoming 2009)
After Work, 95 Cal. L. Rev. 627 (2007)
Some Preliminary Thoughts on Title VII’s Intersexions, 7 Geo. J. Gender & L. 31 (2006)
Good luck with the transition, Zak!
- Terry Smith (photo above), Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace, 57 Am. U. L. Rev. 523 (2008).
Comments & Notes
- Lisa Hansen, A Comprehensive Framework for Accommodating Nursing Mothers in the Workplace, 59 Rutgers L. Rev. 885 (2007).
- Steven M. Shepard, Hankins v. Lyght: The RFRA Defense to Federal Discrimination Claims, 26 Yale L. & Pol'y Rev. 359 (2007).
- Christopher J. Eckhart, Employers Beware: Burlington Northern v. White and the New Title VII Anti-Retaliation Standard, 41 Ind. L. Rev. 479 (2008).
Sunday, March 9, 2008
Congratulations to Scott Van Nice, Benjamin Lewis, Marisa Palmieri (on brief), and Lawrence Rosenthal (coach) for winning the 2008 Wagner Labor & Employment Moot Court Competition at New York Law School. Scott Van Nice received the best oral advocate award for the final round. I do not yet know which teams won best briefs. Congratulations to the Michigan State team for a fantastic final round.
The preliminary round awards are as follows:
Best Preliminary Round Team: NKU Chase
Best Preliminary Round Oralist: Cortney Closey (DePaul)
Second-Best Preliminary Round Oralist: Michael Davis (Stetson)
Best Petitioner's Brief: Michigan State
Second-Best Petitioner's Brief: Charleston
Third-Best Petitioner's Brief: John Marshall
Best Respondent's Brief: NKU Chase
Second-Best Respondent's Brief: Southwestern
Third-Best Respondent's Brief: Texas Wesleyan
Congratulations to the winners and participants. I can say that, without a doubt, the level of competition overall this year was the best in the several years that I have coached a team in this competition.
- Paul M. Secunda, Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States (183).
- Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men, and Responsibility (135).
- Samuel Estreicher & Kristina Yost, Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment (60).
- Jonathan Barry Forman (photo above), Making Our Work Work (51)
- Jean R. Sternlight, In Defense of Mandatory Binding Arbitration (If Imposed on the Company) (49).
- Paul M. Secunda, Towards the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States (183).
- David J. Doorey, Harry and the Steelworker (or Teaching Labor Law to Non-Law Students) (63).
- Jennifer Dillard & Joel F. Dillard, Fetishizing the Electoral Process: The NLRB's Problematic Embrace of Electoral Formalism (59).
- Eric Tucker (photo above), The Constitutional Right to Bargain Collectively: The Ironies of Labour History in the Supreme Court of Canada (42).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (41).