Friday, May 16, 2008
The Lede blog (New York Times) has a post on Sonia Morphew Pitt, Minnesota's Department of Transportation's director of homeland security and emergency management when the I-35 bridge collapsed. Pitt had appealed to get her job back; given her "performance" it's no surprise that she wasn't successful:
[A]ll kinds of people in Minnesota, from firefighters and cops up to the governor and several state legislators, said the agency was no help at all, taking days too long to get itself organized and doing little to coordinate the urgent work of rescue, recovery and repair. In short, it didn’t manage the emergency.
Most glaringly, far from rushing home to take charge personally when the bridge fell, Ms. Pitt stayed out of town for another 10 days, on a mixed business-and-personal visit to Washington and to Cambridge, Mass., before returning to Minneapolis and the mess.
After investigations turned up a number of embarrassing things about how she had been operating (using her state cell phone for personal calls on the road, for instance, and claiming thousands of dollars in dubious travel expenses, and skipping a six-week training and certification course in, um, emergency management), she was dismissed from the post on Nov. 9. . . . After all that, you might think Ms. Pitt would want no more of the harsh limelight surrounding the office she was bounced from. Nope: She filed a formal appeal to get her job back.
The appeal went to arbitration, and the ruling came down today: Forget it. According to The Star Tribune, the arbitrator, Christine Ver Ploeg, wrote that while Ms. Pitt may be entitled to the benefit of the doubt on some of the travel expenses, she had clearly “abused the latitude afforded to her” and the state’s assertion that she had conducted herself unprofessionally was justified.
I'll go out on a limb and predict that is she appeals the arbitrator's decision, she won't have much luck.
We are quickly approaching the annual Law & Society Association (LSA) Annual Conference this year in Montreal (May 29th - June 1st). As in previous years, the labor group of LSA (affectionately referred to as CRN 8) will have a host of great panels (ably coordinated by Ellen Dannin (Penn State), a labor history tour of Montreal, and the piece de resistance, a labor dinner.
If you are interested in learning more about being involved with the labor group at LSA, Marley Weiss (Maryland) writes:
[A]nyone wishing to be added to the listserv for Law and Society Association Collaborative Research Network (CRN) 8 – Labor Rights (which covers individual as well as collective labor & employment law and policy) should e-mail me directly with their name and e-mail address and institutional affiliation (if any) and I will add them to the list. It is a closed list, so there is no spam and people only post to the list regarding the LSA meeting itself and regarding other labor & employment law/industrial relations/human resources academic conferences, new publications, etc. which are likely to be of mutual interest.
The listserv for the group is at firstname.lastname@example.org.
Additionally, if you will be at the conference and would like to join the labor group for dinner, here are the details:
Thanks to the good offices of Adelle Blackett, we have arranged for our annual Collaborative Research Network (CRN) 8 - Labor Rights dinner meeting during the U.S./Canada Law and Society Association conference in Montreal. We have reserved a separate space for our group for Friday night, May 30, at the fine restaurant Paris Beurre. Friday night is the night when there is no major reception connected with the conference, and since it falls in the middle of the conference, the maximum number of CRN members will be in town.
There will be a choice among several entrees, and the price for dinner should be around $30 CAN, including service charge, but not including wine.
I have to provide the restaurant with a head count as soon as possible. If you are planning to be at the Montreal meeting and expect to attend the dinner meeting, could you please e-mail me [Marley] directly.
The Hollywood Reporter had a story early this week that:
A race discrimination lawsuit filed against SAG by its former director of affirmative action has been settled just days before the U.S. Supreme Court was to decide whether to review the lower federal courts’ decision in the case.
Patricia Heisser Metoyer sued SAG claiming she was fired in retaliation for complaints she made about alleged discrimination by the guild. SAG claimed she was let go for allegedly giving more than $30,000 in union funds to friends, business partners and her husband’s production company.
The case was Screen Actors Guild v. Metoyer, No. 07-1024. The legal issue of interest would have been whether under Section 1981 an employer can assert a “mixed motive” defense to an employment discrimination claim.
Hat Tip: Jack Sargent
We were unable to give people the heads up on this conference before it happened because we were unaware of it, but thankfully Jon Forman (Oklahoma) was able to send us information about the symposium.
The 2008 Symposium: The Future of Public Employee Retirement Systems, which occurred on May 1-2, 2008:
[E]xamined the challenges facing public retirement systems in the US and around the world. After tracing the evolution of public sector pensions and retiree health programs, the discussion compared public with private sector pay and benefits. Next the speakers took up public policy concerns regarding accounting and management in public employee plans in the United States, focusing on ways to properly measure liabilities and how to make the plans more cost effective. The discussion also included analysis of defined contribution versus defined benefit plans for the public sector, and funding of federal retirement systems, both civilian and military. International lessons were brought to bear with a discussion of reforms in the German, the Japanese, and the Canadian public employee plans.
This conference was a Wharton Impact Conference sponsored by the Wharton School's Pension Research Council and Boettner Center for Pensions and Retirement Research.
The conference was co-hosted by Gary Anderson and Olivia S. Mitchell at The Wharton School.
Session I: The Past and Future of Public Retirement Systems
Session II: New Developments in Public Plan Management
Session III: International Perspectives on Public Retirement Systems
Session IV: Reform Paths for Public Plans
Session V: Costs and Benefits of Public Retirement Systems
Session VI: Roundtable
For More Information about the presentations at the Symposium, please contact: Pension Research Council, The Wharton School, University of Pennsylvania, 3000 Steinberg Hall - Dietrich Hall, Philadelphia, PA 19104-6302, Tel: 215.898.7620, Fax: 215.573-3418, Email: email@example.com.
Thursday, May 15, 2008
Winnie Taylor, currently at Cornell (where she taught me Employment Discrimination!), will join Brooklyn Law School permanently after having visited there this academic year. A member of Cornell Law School’s faculty since 1990, she also served as the Associate Provost for Cornell University, where she was responsible for creating and shaping university policy as it relates to faculty development and enhancement, diversity issues, academic programs, regulatory compliance, and recruiting. Professor Taylor is a national authority in consumer law, contracts, and credit and employment discrimination. Since 1978 she has served as a consultant for Fair Lending and Workplace Equity, focusing on equal credit opportunity and equal employment opportunity laws.
Following two years of private practice after graduation from SUNY Buffalo School of Law, she received an LL.M. degree from University of Wisconsin School of Law. She began teaching in 1979 at the University of Florida, where she taught until she joined Cornell’s faculty. She has been a visiting professor at the University of California's Hastings School of Law, the University of Utah, and Brigham Young University.
Today’s California Supreme Court gay marriage case, finding that such unions are recognized in California, has both direct and indirect significance for many aspects of labor and employment law. Here are just two.
On the direct side, the court ruled that sexual orientation is now a suspect classification under the state equal protection clause. This will work to protect state employees from discrimination based on sexual orientation.
On the more indirect side of things, just think about the recent Michigan Supreme Court decision on same-sex benefits. The passage of the same-sex marriage ban in Michigan was found to prevent governments and universities in Michigan from providing health insurance to the partners of gay workers. California workers will now not have to worry about such absurd developments.
Finally, it is finally great to see that a court of some significance rule what should be clear to everyone: banning same-sex marriage is a per se violation of equal protection. It violates the central tenet of "equal justice under law."
My hope is that some day are descendants will look at our treatment of the LGBT community as something akin to not permitting women the right to vote or the banning of inter-racial marriages.
Hat Tip: Art Leonard
Lose control. “About a year ago [at another company] a person walked into my office for a review, closed the door and exploded,” says David Valentine, global sales director at the business psychologists SHL. “He demanded a minimum of 25 per cent because at a leaving party everyone got drunk and told him what they earned.” Valentine was able to calm him down - without granting the raise - but having a hissy fit will not endear you to your manager.
Demand equality. This is a tricky one. Sometimes people are discriminated against on the ground of, say, gender, but most people in professional jobs are rewarded according to their achievements. The angry salesman from the previous example demanded equality but was given short and somewhat humiliating shrift by Valentine: “I advised him that what other people earned was not necesarily a guide to what he should earn [and] that what he got was linked to the value he brought to the company.”
Expect to get something for nothing. “People say, ‘I’m good because I feel I’m good’,” says Torsten Muth, the UK managing director of Experteer, a recruitment company. “I say, ‘well, you’re not, because you can’t tell me what you have achieved’.” But don’t go too far the other way, says Julia Gosling, the business director at Mabox, a marketing agency. She prepared her case meticulously but spent so long presenting it that her boss switched off out of boredom. “I spent 20 minutes talking at her rather than having a conversation,” she says.
And my two favorites:
Do it when drunk. “I was at a social function late in the evening when someone decided that the informality [and some dutch courage] would lead to a better result,” says Duncan Howorth, the managing director of JLT Benefit Solutions. “I said that it was not the appropriate moment and to speak later [but] he didn’t. He’d lost his chance.” Don’t risk putting your manager’s back up; it’s an office conversation only.
Threaten to quit. Unless you are genuinely irreplaceable - which is unlikely - this isn’t going to work. Every person interviewed for this article knew someone who’d been left in a pickle when their bluff was called. Even having another job lined up won’t necessarily help. One of Valentine’s staff resigned when his old company couldn’t match a competitor’s promise to double his salary. Shortly after checking the fine print - no pension or benefits meant the overall package contained no rise at all - he sheepishly asked for his resignation back.
Paul Mollica of Daily Developments in EEO Law has the scoop on a new opinion by the Eight Circuit Court of Appeal on the meaning of Price Waterhouse in non-Title VII cases. Specifically, the question posed in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008) is: Do employees have to prove the existence of a biased motivating factor by direct evidence in one of these types of mixed-motive cases?
Although the answer is clearly "no" in Title VII discrimination cases since Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), courts have been mixed in deciding whether the "direct evidence" requirement of Justice O'Connor concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), ought to be the controlling standard in cases under the ADEA and Section 1981, to name just a couple of the non-Title VII statutes in play.
As Mollica points out, the Fifth Circuit in Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004) found that the Desert Palace analysis, which found no meaningful distinction between direct and circumstantial evidence, still applied to non-Title VII cases.
But the Eighth Circuit disagrees in Gross and holds:
When the Court previously addressed statutory text comparable to the ADEA in Price Waterhouse - "because of such individual's . . . sex," 42 U.S.C. §§ 2000e-2(a)(1), (2) (emphasis added) - the result was a fragmented decision from which our court adopted Justice O'Connor's concurring opinion as the controlling rule. The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Our cases have concluded that because Price Waterhouse interpreted language identical to that found in the ADEA, we should follow the Price Waterhouse rule in ADEA cases. Desert Palace does not undermine the rationale of these decisions. We thus conclude that the Price Waterhouse rule continues to govern mixed motive instructions in an ADEA case.
This reasoning not only applies to mixed-motive cases under the ADEA and similar statutes, but also makes it unclear what should happen in so-called mixed motive retaliation cases under Section 704 of Title VII since the Civil Rights Act of 1991 does not apply to Section 704 either.
Here's something that Congress can do easily and usefully: amend the CRA of 1991 to make clear it applies to the ADEA, Section 1981, and the retaliation provisions of Title VII.
This time, it is the Attorney General of Ohio:
Ohio's attorney general resigned Wednesday under threat of impeachment because of a sexual harassment investigation in his office and his extramarital affair . . . .
He admitted May 2 to an extramarital affair with an employee that he said contributed to an atmosphere leading to sexual harassment claims against a top aide.
Three aides were forced out in the harassment investigation, which showed managers encouraged a casual work environment with frequent profanity and inappropriate interactions with subordinates.
Dann had resisted resigning, despite demands by Strickland and others within his party, a growing number of investigations into conduct at his office, and the filing Tuesday of articles of impeachment against him.
Sexual harassment charges do not discriminate in terms of power or wealth. Just ask Clarence Thomas, Bill Clinton, or a number of other high profile figures.
New York University 61st Annual Conference on Labor: "GLOBAL LABOR AND EMPLOYMENT LAW FOR THE PRACTISING LAWYER"
The conference will take place on June 5-6, 2008, and is co-sponsored by American Bar Association's Section on Labor and Employment Law. All sessions will be held in Lipton Hall, D'Agostino Hall, NYU School of Law, 108 West Third Street.
You can see their web site for more information, including a full agenda of conference participants. I will be presenting my newest paper: "The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law.
Other topics to be explored include: In sending U.S. workers abroad or bringing non-U.S. workers here, what the are best practices in terms of choosing among and integrating applicable employment laws and regulatory requirements?; How does one best navigate U.S. immigration and trade adjustment laws to obtain and retain people from abroad?; For global companies, are diversity initiatives best handled at the local level or at the global level? Will positive discrimination laws in various countries hamper a uniform approach?; Can relatively uniform benefits plans be drafted and implemented for a worldwide workforce? In particular, how should social security contributions and credits be administered to maximize benefits for employees?
Wednesday, May 14, 2008
We reported recently on Burger King's use of a controversial private security firm in its ongoing dispute with the Immokalee Workers Coalition about the wages of farmworkers who pick tomatoes. The Miami Herald reports that Burger King has fired two employees following the disclosure that a top official secretly posted blogs slamming the Coalition.
"Following an investigation, Burger King Corporation (BKC) has terminated two employees who participated in unauthorized activity on public Web sites which did not reflect the company's views and which were in violation of company policy....," the company said in a statement.
. . .
A local paper identified Web postings linked to Burger King Vice President Stephen Grover describing the coalition as "an attack organization lining the leaders (sic) pockets ... They make up issues and collect money from dupes that believe their story. To (sic) bad the people protesting don't have a clue regarding the facts. A bunch of fools!" He used his middle school daughter's screen name to make the posting.
The article also reported
Burger King's announcement comes a week after The Associated Press confirmed an e-mail it received in January from an individual purporting to support the coalition appeared to be sent from the company's server.
In March, an individual using the same password-protected e-mail account sent a message to a student group that supports the coalition, according to an AP investigation. That individual claimed to be a University of Virginia graduate student named "Kevin" who wanted to help the coalition boost farmworker wages. The individual asked to listen in on the group's strategy call regarding efforts to pressure Burger King to pay more for its Florida tomatoes.
When asked to identify himself further by the AP and the alliance, the individual did not respond.
Burger King also has discontinued the use of the private security firm which used similar tactics.
Criminal Prosecution of Filipino Nurses and Their Attorney For Endangering Welfare of Nursing Home Patients During Concerted Activity
[Here's] a brief note about the criminal prosecution in New York of a number of filipino nurses and their lawyer for endangering the welfare of nursing home residents, essentially by quitting their jobs together, and in the lawyer's case by advising the nurses to do so. The Suffolk County, New York DA secured an indictment from the Grand Jury, but before the trial could begin a motion to dismiss was brought in New York Supreme Court where Judge Doyle ruled against the defendants. Subsequently, defendants sought a Writ of Prohibition from the Appellate Division of the New York Supreme Court, 2d Department, and the Appellate Division stayed the prosecution pending a full briefing of the issues and a hearing to be scheduled in the future. That is where matters stand at the moment.
The nurses had earlier been cleared of professional misconduct charges for their actions by the relevant New York administrative agency. Defendants are arguing that the criminal prosecution is preempted by the NLRA and violates the 13th and 1st amendments to the U.S. constitution. In one of its mid-20th century anti-peonage decisions, the U.S. Supreme Court declared that "no state may make the quitting of work any component of a crime."
Several months ago I wrote a letter urging then Governor Spitzer to appoint a special prosecutor to look into the case. That letter is attached [here], as are the Memo of Law submitted by defendants in support of their petition for a Writ of Prohibition, and the petition seeking the writ itself, which lay out the facts of the case in greater detail. Also [here] is a link to the Appellate Division's order staying the prosecution. Additional information about the prosecution can also be obtained by going to the website of Newsday, a Long Island, NY newspaper which has been following the story, and to a website established by defendants.
Jeff has written about this bizarre case before, but I have to say that this seems like something that would more likely take place in Russia, China, or somewhere in early 20th, pre-NLRA, America. Needless to say, this type of prosecution would set a dangerous precedent and I can't help but thinking there is certain amount of atavism at play in that the nurses are filipino.
Tuesday, May 13, 2008
Like me. Dan Filler of The Faculty Lounge has the list to end all such lists here.
Great for those of you procrastinating about grading exams or writing an entire draft of a global employee benefits book or something of that sort.
And hey, in a very loose sense it is about law and employment . . . .
In the last week, I've run across two news stories dealing with pregnancy discrimination in a single profession--law enforcement. In Ocean Township, New Jersey, a decorated police officer who was pregnant requested a light duty position until she has her baby. The police chief originally denied the request, saying that he was bound to follow the township's administrative policy on the matter and there was no policy. The issue had been raised in a departmental meeting at least a year earlier, but the chief determined that no policy could be created until an employee became pregnant. The chief also said that there were no "meaningful" positions available that the officer had the necessary training for. The officer is trilingual, fluent in English, Spanish, and Portuguese. The police union appealed the decision to the township's mayor and township council, noting that male officers had been placed on light duty for illnesses and injuries in the past. The union and the township reached an agreement, and the officer was placed on light duty the next day. The dispute brought national media attention to this small town.
On the same day that the New Jersey officer was put on light duty, the Detroit News reported a story about a Detroit police officer who plans to sue the Detroit police department for pregnancy discrimination. The Detroit police department treats pregnancy as analogous to an off-the-job injury and requires officers to take unpaid leave. The EEOC found that the conduct probably violated Title VII. There's an additional wrinkle here:
Deputy Chief James Tate said the department is stuck with the policy. The 2004 change was the result of an arbitrator's ruling after the police union filed a grievance on behalf of a male officer with an off-work injury. That officer complained that 17 pregnant officers were able to get light duty while he could not, according to police arbitration documents. There are about 800 female officers on the force.
And so there has been one finding that not treating male injuries like pregnancies was discrimination on the basis of sex. At the same time,
Similar situations have cropped up around the country as the proportion of police officers who are female and the proportion of pregnant women who wish to continue working grow, said Joanna Grossman, a law professor at Hofstra University in Long Island, N.Y. That has increased the cost of allowing pregnant officers to go on restricted duty and has caused many departments to limit light duty to on-the-job injuries, Grossman said.
However, such a policy change could run afoul of federal law. In 2006, a federal jury in New York ruled that the Suffolk County Police Department violated the Civil Rights Act when it made a similar policy change, because the change was targeted at pregnant women and had a disproportionate impact on them, Grossman said.
So ultimately, these cases reveal some of the challenge of sex discrimination cases that involve biological differences between most women and most men. An employer may not treat a pregnant worker who is temporarily unable to perform some of her job duties because of pregnancy less favorably than workers whose job performance is similarly restricted because of conditions other than pregnancy. But when an employer treats temporary limitations other than pregnancy in a number of different ways, what should the test for discrimination be? The equality theory adopted by the Court breaks down in this context.
From CCH Workweek, this report:
A married couple, fired after their retroactive applications for leave were denied, failed to show their terminations violated the FMLA. The husband took several days off to care for a sick child, but missed the deadline to file the medical certification. The form he used was preprinted with his wife's name and social security bar code information rather than his own, and as a result, the form apparently went astray. The employer did not interfere with the employee's FMLA rights by failing to warn that certification forms could not be interchanged with other employees.
"There is a limit to how many warnings an employer must encumber its forms with," the Seventh Circuit noted. Nor was it interference to require that the completed certification be faxed or mailed directly by the health care professional rather than delivered by the employee. The employer may want to avoid the possibility of an FMLA applicant forging a letter or embellishing the doctor's comments before forwarding it, the appeals court noted, and "nothing in the statute forbids an employer to adopt reasonable, nonburdensome measures for preventing fraud."
As for the wife, her discharge for missing the deadline by only one day was harsh, but after "a history of failed attempts to justify absences as being authorized by the FMLA... hers was a case of the last straw." The employer need not "exhibit more patience than the law and its own rules required," reasoned the court.
The case is Townsend-Taylor v Ameritech Servs, Inc. (7th Cir. Apr. 29, 2008).
I realize there has to be a limit somewhere, but this decision seems to place form over substance in the application of a remedial statute. The fact that both members of this family lost their job at the same time based on these types of technicalities is really outrageous.
Did I mention that Judge Posner wrote the opinion?
The New York Times reports that the Immigration and Customs Enforcement raided a meat plant yesterday in northeastern Iowa and arrested more than 300 workers.
The authorities said the workers were suspected of being in the United States illegally or of having participated in identity theft and the fraudulent use of Social Security numbers.
A spokesman for Immigration and Customs Enforcement would not say how many people had been rounded up beyond the initial 300 or whether the management and owners of the plant, AgriProcessors, would face criminal charges.
The plant has 800 to 900 people and is the country’s largest producer of meat that is glatt kosher, widely regarded as the highest standard of cleanliness.
The plant shut temporarily.
. . .
According to Menachem Lubinsky, the editor of Kosher Today and a marketing consultant, AgriProcessors provides 60 percent of the kosher retail meat and 40 percent of the kosher poultry nationally, and most retail chains depend on it for supply. Mr. Lubinsky said the company was also the sole American packing plant whose products are accepted in Israel.
The article reports that a former supervisor at the plant estimated that 80 percent of the workers there were undocumented.
This raid comes at the same time that the Social Security administration has decided not to issue no-match letters for 2007, according to a CCH Work Week report. US District Court Judge Charles Breyer of the Northern District of California had issued a preliminary injunction in October 2007 stopping the Department of Homeland Security from implementing its no-match regulation, which included DHS inserts explaining the regulation sent to employers with the Social Security no-match letter. And immigration reform seems no closer on the horizon.
We've posted several times (here, here, and here) on the Third Annual Colloquium on Current Scholarship in Labor and Employment Law, but now comes the exciting word (from Ruben Garcia) that Harry Arthurs will be the keynote speaker.
Arthurs is University Professor (and former dean) at Osgoode Hall, York University in Toronto. He has served as the Commissioner reviewing Canada's labour standards legislation (2004-2006) and as Commissioner reviewing Ontario's pension legislation (2006-2008). His publications range widely over the areas of legal education and the legal profession, legal history and legal theory, labour and administrative law, globalization and - in recent years - constitutionalism. His academic contributions have been recognized by his election as an Associate of the Canadian Institute for Advanced Research, a Fellow of the Royal Society of Canada and a Corresponding Fellow of the British Academy. In 2002, he was awarded the Canada Council’s Killam Prize for his lifetime contributions to the social sciences as well as the Bora Laskin Prize for his contributions to labour law.
What a privilege!
Monday, May 12, 2008
The May 12, 2008 Issue of Inside OSHA (subscription required but free trial available) reports that much-needed OSHA reform may soon be on its way if Senator Kennedy has anything to say about it:
Senate labor committee Chair Edward Kennedy (D-MA) plans to push separate sections of his OSHA reform bill this year if he cannot get the entire bill passed, a source close to the issue told Inside OSHA. The OSHA reform legislation was dormant until a couple of months ago when Kennedy began holding worker safety-related hearings.
The source told Inside OSHA that requiring stiffer penalties for worker health and safety violations is a huge priority for Kennedy.
During an April 29 hearing on OSHA’s outdated penalty structure, Kennedy heard suggestions from AFL-CIO, a former employee of the Department of Justice, and a victims’ representative group on how to strengthen the enforcement provisions in his bill, The Protecting America’s Workers Act (PAW Act) . . . .
The PAW Act would strengthen OSHA enforcement by imposing criminal sanctions and enhanced penalties for fatal injuries, and expanding rights for victims and survivors of workplace tragedies. The bill also would expand and strengthen “whistleblower” and anti-retaliation protections for workers who complain about hazards and injuries and expand the OSH Act’s scope to include public sector workers.
OSHA reform has been necessary for decades now. It is always amazing to me that workers continue to get sick and die in the workplace and there is not more outrage in this country about the current state of affairs. There also needs to be more uniformity in workplace safety protection for public employees, a group that makes up about one-fifth of our nation's workforce and continues to grow in proportion.
Just another reason why it is so important to elect a Democratic President who will sign a PAW Act-type bill.
The end of the 10-year Fashion Valley case seems to be over. Unless the D.C. Circuit hears the case en banc or there is a cert. petition, the appellate court's recent decision in Fashion Valley Mall v. NLRB (May 9, 2008), has put the matter to rest. As we posted earlier, the case involved a mall's enforcement of its "anti-boycott" rule against a union. In answering a certified question from the D.C. Circuit, the California Supreme Court upheld its previous precedent (Pruneyard) treating shopping malls as public fora. Thus, under state law, the mall's enforcement of its rule was unlawful. In a subsequent opinion, the D.C. Circuit reaffirmed the dispositive nature of state property law on the question whether an employer's attempt to bar nonemployees from its property was unlawful under the NLRA--basically holding that the lack of a state property right to exclude means that Lechmere does not apply. In the most recent decision, the court rejected the mall's attempt to argue that the ruling violated its constitutional rights:
Fashion Valley now claims the interpretation of the Constitution of California requiring it to allow protesters on its premises to urge a boycott of its tenants’ stores violates its rights under the Fifth and Fourteenth Amendments to the Constitution of the United States. It concedes, however, that it did not raise its constitutional argument until it petitioned the Supreme Court of California for rehearing. The Board argues the argument is forfeit because Fashion Valley did not raise it during the agency proceeding.
Whether Fashion Valley was required to raise its argument before the Board is not clear. “[T]here is [no] bright-line rule allowing litigants to bypass administrative [process] simply because one or all of their claims are constitutional in nature,” Marine Mammal Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409, 413 (D.C. Cir. 1998), but we have stated we may excuse a failure to exhaust administrative remedies when exhaustion would be “futile” because a claim involves “the constitutionality of a [federal] statutory provision” and would therefore be “beyond [the agency’s] competence to decide.”
We need not wade into such murky waters in this case: We have no doubt Fashion Valley forfeited its constitutional argument because it did not raise that argument in its petition for review by this court. Fashion Valley resists this conclusion, contending “it would have been impossible for [it] to have presented, or for the Board to have resolved, U.S. Constitutional issues created by a decision which had not yet been issued.” But the decision of the Supreme Court of California did not inject a new constitutional issue into the case. The Board’s understanding of California law had been part of this case from the time the Board’s General Counsel filed the first brief before the Board; the Supreme Court of California merely confirmed that the interpretation of California law long followed by the Board was correct.
This issue is an interesting one, especially in potential Lechmere cases because various state property regimes can raise potential constitutional issues. I struggled as an NLRB attorney with the the Catch-22 of not being able to argue an obvious constitutional issue because the NLRB didn't discuss in its decision (and will always have a soft spot in my heart for then-Judge Alito, who once tried to bail me out of an oral argument by raising it himself . . . before another judge slammed the door by pointing out that the constitutional issue wasn't part of the NLRB decision). As I've noted in an earlier article, it's a problem because real constitutional problems are often being left unanswered.
This case supports another point I made in that article--these cases are overly complicated and involve an inordinate amount of delay, even by NLRB standards. As further evidence, the NLRB attorney in this case is my good friend Anne Marie Lofaso (pictured), who is currently in her second year as a faculty member at WVU law school. Congratulations to her on a well-deserved win.
Hat Tip: William Herbert
- Sharona Hoffman (photo above), Settling the Matter: Does Title I of the ADA Work?, 59 Ala. L. Rev. 305 (2008).
- Bradley A. Areheart, When Disability Isn't "Just Right: The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. 181 (2008).
- Mindy C. Calisti, You Are Being Watched: The Need for Notice in Employer Electronic Monitoring, 96 Ky. L.J. 649 (2007-08).
- Darren Abernethy, Of State Laboratories and Legislative Alloys: How "Fair Share" Laws Can Be Written To Avoid ERISA Preemption and Influence Private Sector Health Care Reform in America, 49 Wm. & Mary L. Rev. 1859 (2008).
- Robert Johnson, Whistling While You Work: Expanding Whistleblower Laws To Include Non-Workplace-Related Retaliation After Burlington Northern v. White, 42 U. Richmond L. Rev. 1337 (2008).