April 19, 2008
Top-5 Employment SSRN Downloads
- Richard A. Bales & Jason N.W. Plowman, Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example (131).
- Steven L. Schooner (left) & Danielle Conway-Jones (right), Emerging Policy and Practice Issues (124).
- Martin Gelter, The Dark Side of Shareholder Influence: Toward a Holdup Theory of Stakeholders in Comparative Corporate Governance (120).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (98).
- Cass R. Sunstein, Is OSHA Unconstitutional? (95).
Top-5 Labor SSRN Downloads
- Raja Raghunath, Stacking the Deck: Privileging "Employer Free Choice" over Industrial Democracy in the Card Check Debate (75).
- Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accomodation Provision (73).
- Alexander J.S. Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? (69).
- Laura J. Cooper (left), Mario Bognano (center), & Stephen F. Befort (right), How and Why Labor Arbitrators Decide Discipline and Discharge Cases: An Empirical Examination (64).
- Sara Slinn, No Right (to Organize) Without a Remedy: Evidence and Consequences of Failure to Provide Compensatory Remedies for Unfair Labour Practices in British Columbia (62).
Top-5 International Employment & Labor Law SSRN Downloads
- Lauren Carasik, Think Glocal, Act Glocal: The Praxis of Social Justice Lawyering in a Global Era (55).
- Stefano Liebman (photo above), Multi-Stakeholders Approach to Corporate Governance and Labor Law: A Note on Corporate Social Responsibility (29).
- Sean Cooney, Sarah Biddulph, Ying Zhu, & Li Kungang, China's New Labour Contract Law: Responding to the Growing Complexity of Labour Relations in the PRC (25).
- Marie-Ange Moreau, European Solidarity and Labour Law: Some Thoughts Stemming from the Question of Restructuring in Europe (20).
- Shruti Tripathi, Child Labor as an Institution in India (19).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (149).
- David A. Hyman, Health Insurance: Market Failure or Government Failure? (143).
- Lauren E. Willis (photo above), Against Financial Literacy Education (121).
- Yaniv Grinstein, David Weinbaum, & Nir Yehuda, Are Perks Excess? Evidence from the New Executive Compensation Disclosure Rules (117).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (92).
April 18, 2008
The Book of Poop
Thanks to Daniel Schwartz over at Connecticut Employment Law Blog for the heads-up about his post today on the recent disability case of Murphy v. Beavex, Inc. The plaintiff-employee apparently had several "bowel incidents" at work. Co-workers left "The Book of Poop" (purportedly a children's book, though Schwartz could find no evidence of this book's existence) at his desk and called him names such as “Mr. Sh_tty,” “The Sh_tmeister,” and “Poopy.” The court found that this was not enough to create a hostile work environment:
In considering the remaining alleged incidents in a light most favorable to [the Plaintiff], the court concludes that a reasonable jury could not find such conduct so severe and pervasive as to have altered his working conditions. While it was insensitive for [the Plaintiff]’s coworkers to call him names and leave a scatological children’s book near his workspace, such teasing does not rise to the level of severity and pervasiveness required to defeat a motion for summary judgment.
Scott Moss (Colorado) has just posted on SSRN his article (forthcoming Duke L.J.) Litigation Discovery Cannot Be Optimal But Could Be Better: The Economics of Improving Discovery Timing in a Digital Age. Though the article is about litigation generally, the importance of discovery in employment litigation will make the article of particular interest to folks interested in employment and discrimination law. Here's the abstract:
Cases are won and lost in discovery, yet discovery draws too little academic attention. Most scholarship focuses on how much discovery to allow, not how courts decide discovery disputes - which, unlike trials, occur in most cases. The growth of e-discovery - imprudent emails or lingering deleted files - makes cost issues increasingly salient, but the e-discovery rules just reiterate existing cost/benefit proportionality limits. Proportionality limits are topic of broad consensus among civil procedure scholars and economists, but this Article deems them impossible to apply effectively. Proportionality limits fail to curb discovery excess while also disallowing discovery meritorious cases need, resulting in bad cases dominating good ones. This Article acknowledges proportionality's flaws but rejects the consensus blaming bad rulemaking or judging. Rather, proportionality requires impossible comparisons: how can courts compare discovery value and cost before parties gather the evidence? Like other arguments that procedural rulings are never truly separate from case merits, this Article notes how discovery has more probative value in the closest cases - yet case merits remain uncertain in discovery, when courts cannot yet examine all the evidence. In game theory terms, parties with discovery disputes cannot convey case merit credibly; courts have too little information, so low-merit parties can claim high merit, and courts act as if all cases warrant similar discovery. In this pooling equilibrium, ruling the same on all cases in the pool, regardless of merit, is courts' best strategy but a sub-optimal one, yielding too much discovery in low-merit cases, too little in higher-merit ones. Thus, the quest for better discovery has disappointed not because of bad rules or decisions, but because courts and parties are stuck in a pooling equilibrium with information-timing circularity: optimal evidence-gathering requires merits analysis, which requires evidence-gathering.
One answer is to defer close decisions on possibly useful but costly evidence until meritorious cases separate from the pool, turning pooling equilibria into separating equilibria. Summary judgment can be this separation: cases going to trial, post-summary judgment, likely have 50/50 odds - better than most. Costly evidence has more value in 50/50 cases, where juries struggle to reach verdicts, than in weaker or stronger cases. Noone yet has proposed post-summary judgment discovery to redress the costly discovery dilemma (summary judgment typically follows discovery), but high-cost evidence can be an exception: cases surviving summary judgment are close calls warranting more fact-gathering, so some costly discovery regularly denied now should be allowed after summary judgment. Thus, the existing debate is too focused on discovery quantity; it should focus more on discovery timing. Existing rules give courts discretion to use this proposal, but a new rule could minimize the risk of misusing the proposal to deny more discovery. This Article concludes by briefly noting how economic analyses must consider the details and information timing of the litigation process.
Sexual Harassment by Third Parties
PJH Law discusses a new amendment to Britain's Sex Discrimination Act allowing
an employee to bring a claim against an employer who fails to take reasonable steps to protect them from harassment by third parties where the employer knows that harassment has occurred on at least two other occasions. Interestingly the harassment does not need to have been carried out by the same person on each occasion.
The amendment was passed last year when the Equal Opportunities Commission found that the government had not properly implemented the European Equal Treatment Directive in relation to protection against harassment. Hotels, pubs, and restaurants are expected to be particularly affected by the new law.
April 17, 2008
Hard Times for Workers
The New York Times has an interesting article looking at the recent depressing trends for American workers. It is no secret that workers have not fared well over the last several years, despite low unemployment rates. The article shows why the unemployment figures don't tell the whole story:
While official unemployment has risen only modestly, to 5.1 percent, the reduction of wages and working hours for those still employed has become a primary cause of distress, pushing many more Americans into a downward spiral, economists say. Moreover, this slippage is a critical indicator that the nation may well be on the verge of a recession, if not already in one.
Last month, the hours worked by those on American payrolls dropped, compared with six months earlier, according to an index maintained by the Labor Department. The last time the index moved into negative territory was February 2001, when the economy was on the doorstep of recession. A similar slide emerged in August 1990, one month into what proved an even more severe downturn.
From March 2007 to March of this year, the average workweek reported in the private sector slipped slightly to 33.8 hours, from 33.9 hours, while overtime for manufacturing workers fell by a larger margin. At the end of last month, more than 4.9 million people were working part time either because they could not find full-time jobs or because their companies had cut hours in the face of slack business, according to a Labor Department survey. That represented an increase of 400,000 since November.
And on Wednesday, the government reported that average earnings slipped in March after accounting for the rising costs of food and fuel — the sixth consecutive month that pay failed to keep pace with inflation. As people bring home paychecks that do not go as far, they are forced to economize, eliminating demand for goods and services that once captured their dollars, spreading pain to providers like auto dealers and lawn care providers. They, too, must trim their outlays on pay, shrinking working hours more and furthering the slowdown. . . .
Even before the rollback in working hours, pay was barely keeping up with the rising costs of gas and food. From February to September of last year, the average hourly earnings for workers in the private sector was still growing at a slightly faster clip than the pace of inflation, according to the Labor Department. But from November through March, as employers began to scale back in a variety of ways, wage growth fell below the pace of inflation, meaning that paychecks were effectively shrinking. Now, work opportunities are themselves declining, as the downturn snuffs out business.
I've always been frustrated with the media's reliance on one set of data, particularly unemployment figures, in reporting on the labor market. No measurement accounts for everything and the unemployment numbers are often particularly misleading, as they omit workers who have given up looking for jobs or those who are working fewer hours than they desire. As the article notes, a broader view of employment trends is not a pretty one.
Corrada and Arnow-Richmond Awarded Research Professorships
Roberto Corrada and Rachel Arnow-Richman both have been awarded research professorships for the 2008-09 academic year by their home institution, University of Denver Sturm College of Law. Roberto and Rachel will be relieved of their teaching assignments for the year while they work on significant research projects.
Roberto will use the professorship to complete research and write a book tentatively entitled Transforming Law Learning. As many of you know, Roberto pioneered the use of an extended simulation in teaching Labor Law, encouraging his students to organize into a union to bargain for the terms and conditions of the classroom. With his and Ken Dau-Schmidt's help, I adopted the approach last year myself, and can attest to its success. Recently, Roberto has been working on assessments and learning outcomes in simulation courses.
Rachel will use the professorship to work on a project entitled Fair Termination in an At-Will World. Rachel’s work will examine significant changes to the current at-will regime, and will build on her previous work in the employment area.
Denver usually awards at most only one research professorship per year, so its dual award indicates both the incredible accomplishments of the recipients and the school's strong support of its labor and employment law program.
Arbitration Fairness Act of 2007
Yesterday afternoon, the Congressional Black Caucus Foundation held a forum, entitled, "Civil Rights as a Bargained for Exchange: Mandatory Arbitration of Contracts of Employment." From the announcement:
With the introduction of the Arbitration Fairness Act of 2007,(H.R. 3010 [and S.1782]) by Senator Russell Feingold and Congressman Hank Johnson, the 110th Congress has taken a firm stand for the fundamental civil rights of American workers. In light of this progressive legislation, the Congressional Black Caucus Foundation will be presenting a policy issue forum to refocus attention on the significant issues raised by mandatory arbitration clauses in contracts of employment.
* Congressman John Conyers, Chair, House Judiciary Committee
* Congressman Hank Johnson, House Sponsor H.R. 3010
* Congresswoman Linda Sanchez, Chair, Subcommittee on Commercial and Administrative Law, House Judiciary
* Congressman Jerrold Nadler, Chair, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, House Judiciary
* Congressman Keith Ellison
* Professor e. christi cunningham, Howard University School of Law
* Professor Michael Selmi, The George Washington University Law School
* Michael Foreman, Lawyers Committee For Civil Rights
* David Arkush, Public Citizen (Director, Washington Watch)
Hat tip: Wendy Green
Conference Call with Ted Kennedy re: Ledbetter
Today's Daily Labor Report (subscription required) reports that Senator Ted Kennedy is urging fellow Senators to support legislation that would effectively overturn last year's Ledbetter decision. Recall that in that decision, the Court held 5-4 that the time limit for filing an EEOC charge in a pay discrimination case starts running when the employer makes a discriminatory decision about an employee's compensation, not when the employee receives a discriminatory paycheck.
Today, at 1:45 EST, Senator Kennedy will hold a conference call with Marcia Greenberger, Co- President of the National Women's Law Center and Lilly Ledbetter, the named plaintiff in Ledbetter. The purpose of the call is to discuss the pending legislation, entitled the "Lilly Ledbetter Fair Pay Act." For instructions on dialing into the call, call 202-224-2633.
Hat tip: Rebecca Cull.
Empirical Study of Employment Discrimination Litigation
Laura Beth Nielsen (American Bar Found. & Northwestern Sociology), Robert Nelson (Northwestern Law & Sociology), and Ryon Lancaster (Chicago Sociology) have just posted on SSRN their important new empirical study of employment discrimination litigation, Uncertain Justice: Litigating Claims of Employment Discrimination in the Contemporary United States. Here's the abstract:
This article examines the broad mass of employment discrimination claims brought in federal court between 1988 and 2003. Unlike much scholarship, which studies a small proportion of cases that generate published opinions, we analyze a large random sample of cases. Examining a representative sample of cases allow us to better assess law's role in processing claims of discrimination and its relationship to theories of rights mobilization, organizations, and disputing.
Our qualitative and quantitative data capture the dynamics of the stages of litigation. We examine the social and legal determinants of outcomes at each stage. Analyzing discrimination litigation as a sequence of alternative outcomes reveals aspects of antidiscrimination law in action that have gone unexamined in previous research. This new approach suggests that the system of employment discrimination litigation reflects the operation of social advantage and typically provides either no or modest remedies for plaintiffs. While employment discrimination litigation grew dramatically in the 1990's, it did so primarily as a system of individualized claims. Thus employment civil rights reflect many of the contradictions of the American civil justice system. A small number of cases produce large awards and have far reaching consequences for employment practices. The typical plaintiff receives neither their [sic] day in court nor a meaningful remedy. The uncertain character of outcomes drives parties to reach a settlement.
The findings shouldn't come as a surprise to anyone who has litigated these claims or studied them closely. Litigating individual claims is so time-consuming and expensive that low-income employees are priced out of the market for legal services. Consequently, the antidiscrimination laws do very little to protect the employees most in need of legal protection. Employment discrimination "rights" are chimerical to the vast majority of employees who cannot afford to hire a lawyer out-of-pocket, whose low wages (and thus provable damages) are too low to attract an attorney on a contingency basis, and who cannot proceed pro se because the charge-filing and legal systems are needlessly complex. Bravo to this trio for shining a spotlight on the problem.
April 16, 2008
Call for Papers
To follow up on the post about the Third Annual Colloquium on Current Scholarship in Labor and Employment law, posted here, the organizers, Susan Bisom-Rapp, Orly Lobel, and Ruben Garcia have sent out a call for papers. More information here. This is a great conference, which this year looks to be somewhat expanded. More fun!
Delta-Northwest Merger: Will They or Won't They?
Delta's and Northwest's recent announcements (Northwest announcement and Delta Announcement) describes their merger as all but a done deal--Delta's, in particular. However, even beyond the possible antitrust problems, the airlines still haven't cleared the union seniority hurdle that thwarted their earlier merger attempt. As the BNA's Daily Labor Report (subscription required) notes, that issue may still kill the deal:
The carriers' announcement came after Delta reached a tentative agreement with its only major union, the Air Line Pilots Association, to facilitate the merger. The agreement would make modifications in the current contract covering 6,000 Delta pilots in exchange for stock in the new company and pay increases over the next four years. A schedule for the ratification vote on the tentative agreement by ALPA members has not been set.
Earlier, at the urging of the two airlines, ALPA leaders at Delta and Northwest, where the union represents 4,500 pilots, attempted to negotiate a pre-merger agreement, which would have covered all 10,500 pilots. Although the two unions resolved most terms, they were unable to reach a final agreement on integration of the two groups' seniority lists, officials of both ALPA chapters said. Delta pilot union leaders April 14 said that they will work for approval of the merger, while Northwest ALPA chapter officials vowed to try to stop the merger.
The International Association of Machinists, which represents 12,500 Northwest customer service agents, gate agents, ramp workers, and baggage handlers also said April 14 that it will oppose the merger. "[W]e firmly believe this merger is not in the best interest of passengers, employees or the communities these airlines currently serve," said Robert Roach, IAM general vice president.
IAM in late 2006 began an organizing campaign among approximately 6,000 Delta Air Lines' ramp service, customer service, reservation, and maintenance employees, but has not yet petitioned the National Mediation Board to conduct a representation election. The Association of Flight Attendants-CWA, which represents about 9,500 flight attendants at Northwest, [also] is campaigning to represent Delta's 13,000 flight attendants, who are scheduled to vote between April 23 and June 3.
Regarding possible elections after their merger, Delta and Northwest said that upon completion of the merger, "the status of union representation among the various workgroups, along with the status of Northwest's union contracts, will be resolved through the appropriate governmental processes." Under the Railway Labor Act, which governs labor relations in the airline industry and is administered by the National Mediation Board, employees who are covered by collective bargaining agreements continue to work under those contracts after a merger, unless new agreements are reached or the unions are ousted in representation elections among the combined workforces.
A lot of interesting issues involved if this deal goes through, so stay tuned.
Pyett and Arbitration Under a Collective Bargaining Agreement
On the heels of Paul's post below on the Third Circuit's Rohm & Haas case, I thought I'd share my argument for how the Court should decide the currently pending case of 14 Penn Plaza v. Pyett. I think the Court should decide narrowly that union waivers of a statutory right to sue should be enforceable only if the union and employer provide employees with an adequate forum for resolving their statutory rights. In Pyett, there was no such forum, so I think the Court should uphold the Second Circuit decision below.
14 Penn Plaza v. Pyett raises the issue of whether an arbitration clause, contained in a collective bargaining agreement but covering statutory issues as well as contract issues, is enforceable as to those statutory issues. In Alexander v. Gardner-Denver, the Supreme Court held that arbitrating a contract claim does not preclude litigating a statutory claim on the same facts. The Court said some very negative things about the arbitration of statutory employment claims, one of which was that unions couldn't be trusted to enforce the statutory rights of minority employees. Another was that statutory claims generally were not suitable for arbitration.
There's been a lot of water under the arbitral bridge since Gardner-Denver. Beginning in the 1980s, the Supreme Court approved arbitration of statutory claims under RICO, then under securities law, and in the 1991 Gilmer case, the ADEA. The circuits long have been divided over what, if anything, is left of Gardner-Denver -- i.e., can a union, by including statutory claims as arbitrable under the collective bargaining agreement, waive its members' right to file a separate statutory claim? We thought the Court was going to answer this question in the 1998 Wright case, but instead the Court just said that such waivers, if permissible at all, must be "clear and unmistakable."
In Pyett, the waiver is clear and unmistakable.
There are at least three arguments for enforcing
the waiver. First, the Supreme Court
looks upon arbitration far more favorably today than it did when Gardner-Denver was decided. Second, the Federal Arbitration Act was not
argued as a basis for waiver in Gardner-Denver, but it will be in Pyett. The Supreme Court, for the last twenty years
and only a few weeks ago in Hall Street, has emphasized that the FAA
“substantiat[es] a national policy favoring arbitration,” and has consistently
interpreted the statute to achieve that result. Third, unions today arguably are far more attuned to the rights of
minority employees than unions were when Gardner-Denver was decided. Given the twin demographic trends of
declining union density and an increasingly diverse workforce, unions cannot
afford to run roughshod over minority members.
But the Second Circuit in Pyett was unconvinced, and for good reason. Unions inherently are majoritarian, and they often have interests that conflict with the interests of individual members. It is not at all difficult to imagine a union declining to pursue the discrimination claim of a handful of employees in return for a work rule or a raise that benefits all employees in the bargaining unit. Unions can make this decision unilaterally, because they have unfettered discretion over whether to pursue or drop grievances, subject only to the remote possibility of an employee bringing a DFR suit.
This is precisely what seems to have happened in Pyett, at least according to the Second Circuit’s description of events. The union refused to pursue in arbitration the age discrimination claims brought by the plaintiffs.
For more than twenty years now, the Supreme Court has recited like a mantra that arbitration is not a waiver of substantive rights, but merely a substitute forum. But if the Supreme Court in Pyett overrules the Second Circuit, the arbitration clause will function not as a substitute forum, but as a waiver of any forum whatever. The Union waived the plaintiff’s right to litigate by signing the arbitration clause, then waived the plaintiff’s right to arbitrate by declining to arbitrate the case.
I think the Court should hold that a union-negotiated waiver will be effective only if the arbitration agreement provides employees with an adequate forum for resolving their statutory rights. No forum, no waiver. Unions could provide this forum in a variety of ways, such as by guaranteeing that that all statutory claims will go to an arbitrator, or by giving employees the right to pursue arbitration under the collective bargaining agreement at their own expense.
In Pyett, there is no substitute forum. On this ground alone, the Supreme Court should affirm the Second Circuit, and leave for another day the issue of whether a union may waive its employees’ right to litigate their statutory employment claims. Punt shanks Wright.
ERISA and Arbitration Under a Collective Bargaining Agreement
The Third Circuit recently considered an interesting case at the intersection of employee benefits law and labor law, involving a multiemployer benefit plan and the necessity of employees to grieve under the CBA a disability benefit claims, rather than going directly to federal court.
Employees challenged the denials of their claims for disability benefits under their employer's Employee Retirement Income Security Act (ERISA) plan. The primary issue on appeal was whether those challenges were subject to the grievance procedure contained in a totally separate collective bargaining agreement (CBA) between the employer and the union. The 3rd Circuit held that "there is no right to arbitration of ERISA benefits under a CBA unless the ERISA benefits sought are either (i) derived directly from an ERISA plan established and maintained by or incorporated into a CBA whose grievance procedure contains an arbitration clause, or (ii) created by a separate ERISA plan and that plan and/or the CBA provide that adverse benefit determinations by a plan administrator are subject to the CBA's grievance procedure that includes arbitration."
The court explained "[w]e do not purport to hold that benefits provided pursuant to ERISA can never be subject to the grievance or arbitration provision contained within a CBA. Indeed, the regulations governing ERISA specifically contemplate that an ERISA plan may be established or maintained pursuant to a CBA and set forth separate guidelines for such plans." The court noted, however, that in this case neither the plan nor the CBA referenced each other. Since the requisite relationship between the plan and the CBA did not exist, the court held that the plan's denial of benefits was not subject to the CBA's grievance procedure.
I think the court got this right and the holding is consistent with union arbitration cases like Wright (U.S. 1998), which says that a union has to clearly and unmistakably waive an individual's rights to external law protections. Such waiver was clearly not found in this CBA.
Estreicher & Lester on Employment Law
Congratulations to Samuel Estreicher (NYU) and Gillian Lester (Berkeley) on the publication of their new book Employment Law (Foundation Press; part of the Concepts and Insights Series). Unfortunately, the book is not yet up on Foundation's web site, but review copies are available (I received mine today).
At the Intersection of Public Employment and the Religious Rights of School Employees
The Third Circuit has just come down with a fascinating, complex decision, Borden v. School District of the Township of East Brunswick (3d Cir. Apr. 15, 2008), involving the free speech and association rights of a public school football to participate in student-led prayers before games. The coach wished to engage in "the silent acts of bowing his head during his team’s pre-meal grace and taking a knee with his team during a locker-room prayer."
In fall 2005, East Brunswick School District Superintendent Jo Ann Magistro received complaints from parents and players regarding Borden’s pre-game prayer activities, which included leading students in prayer at pre-game dinners.
The high school officials subsequently asked Borden to stop participating in religious activities with his players. According to the 3rd Circuit, at a team dinner following the school officials’ requests, Borden continued involving himself in team prayer and allegedly told players who did not want to participate that they could wait in the restroom until prayer was over. Later Borden resigned his position, then withdrew it, and sued the school district, arguing that its policy against his participation in prayer with his players violated his free speech rights.
This description brings to mind the Establishment Clause cases of Lee v. Weisman, which recognized the subtle coercive pressures of students when such religious activity is present, and the Santa Fe Independent Sch. Dist. v. Doe (U.S. 2000), involving a finding that a student-led, student-initiated prayer violated the Establishment Clause when the school was substantially involved in helping to pick participants.
As for the decision, the ACSBlog goes on to explain:
[The] federal appeals court . . . unanimously ruled that a New Jersey high school football coach cannot participate in pre-game prayer activities with his players . . . .
Citing federal court precedent, the 3rd Circuit reversed the district judge’s ruling and found that Borden’s involvement in prayer with his players did subvert the First Amendment principle of the separation of church and state. In Borden’s case, the panel wrote in Borden v. School District of the Township of East Brunswick, that the “conclusion we reach today is clear because he organized, participated in, and led prayer activities with his team on numerous occasions for twenty-three years.”
“Thus,” the court continued, “a reasonable observer would conclude that he is continuing to endorse religion when he bows his head during the pre-meal grace and takes a knee with his team in the locker room while they pray.”
So in the battle of constitutional rights, the Establishment Clause rights of the students seemed to overcome the free speech interests the coach had. I'm not surprised by this because whereas the Establishment clause is at full force here, the speech rights of public employees are less robust and diminished under the Connick/Pickering framework (court: "However, while 'public employees
enjoy substantial free speech rights,' id. at 396, those rights are limited. See Connick, 461 U.S. at 148-54; Pickering, 391 U.S. at 568), even assuming the coach had such rights (the court found that he did not speak on a matter of public concern).
On the Garcetti "official duties" test, the court stated in fn. 13:
Based on our prior decisions, as well as the decisions of other courts of appeals, Borden’s actions do not constitute speech on a matter of public concern regardless of the application of the Supreme Court’s most recent case in the line of cases on the free speech rights of public employees. See Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) . . . .
If Garcetti applied to this case, Borden’s speech would not be protected as it was made pursuant to his official duties as a coach of the EBHS football team and not as an
ordinary citizen. However, even if Garcetti does not apply in the educational context, Borden’s conduct is not on a matter of public concern for the reasons just described.
So even though the Court, IMHO, came to the right Establishment opinion, note that the public school officials looses in this case regardless of whether Garcetti applies or not.
One more interesting point: the court found that the Coach's freedom of association was not violated because the coach and his players collectively did not have an "intimate association right" under Roberts, because the association must not only involve "a special community of thoughts, experiences, and beliefs[,] but also distinctively personal aspects of one’s life.’” [Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 545 (1987)] (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20 (1984)).
Ahh, the fascinating intersection of public employment and constitutional law. Gotta love it.
Shout Out to Clinicians With Not Enough To Do Blog
Here's a description of the blog from Minna's first post:
So why isn’t there a really active clinical blog? Our traditional colleagues seem to have taken to the blog-sphere whole hog, so to speak. What happened to clinicians as the early adopters in the world of technology? It can’t be because we’re too busy --- we only teach 8 students after all. And we have plenty of time to post to the listserv.
So let’s get with it. The GRRLS from Brooklyn will get us started. I’m on sabbatical, so I have an excuse (this better count as my sabbatical project). My beloved colleague and clinic director (a/k/a cat herder), Stacy Caplow, will be joining me – she’s the funny one. We promise to post every day until the clinical conference in Tucson. The quid pro quo is that you out there must provide feedback -- only in the form of supportive, reflective and empathetic comments. And if you believe yourself to be in possession of what passes for a sense of humor in the legal academic world, please volunteer to be a guest blogger.
This is not a non-directive blog, however. Two rules to start with:
1. No anonymous posts - let’s try to keep this thing clean.
2. No shameless self-promotion – save it for the listserv.
Other rule-making is welcome.
Best of luck Minna and Stacy with this new blog endeavor!
Organizing NY Home-Based Child Day-Care Providers
David Gregory (St. John's) has just posted on SSRN his article (forthcoming Fordham Urb. L.J.) Labor Organizing by Executive Order: Governor Spitzer and the Unionization of Home-Based Child Day-Care Providers. Here's the abstract and an excerpt from the conclusion:
On May 8, 2007, New York Governor Eliot Spitzer issued Executive Order No. 12, opening the door for the unionization of 60,000 persons paid directly or indirectly, in whole or in part, by state funds, to provide home-based day-care for the children of working parents. The Governor's action was dramatic, stark, and extraordinarily significant.
Although the result of the possible conflict between Governor Spitzer’s executive order and federal antitrust laws is difficult to predict, overall, Governor Spitzer’s order will certainly increase the political clout of organized labor and enable New York childcare providers to demand fair pay for their services. At the same time, it is far less certain whether this development will lead to improvements in the quality of child-care services predicted by the proponents of the reform. Moreover, there are reasons to expect that state and local governments will be unable to maintain affordable child-care services for working families at the current level. Regardless of the outcome, however, the burden on the state taxpayers will increase.