May 24, 2008
Top-5 Employment SSRN Downloads
- Richard A. Bales (left) & Jason N.W. Plowman (right), Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example (190).
- Nathan B. Oman, Specific Performance and the Thirteenth Amendment (165).
- Steven L. Schooner & Danielle Conway-Jones, Emerging Policy and Practice Issues (164).
- Martin Gelter, The Dark Side of Shareholder Influence: Toward a Holdup Theory of Stakeholders in Comparative Corporate Governance (153).
- Cass Sunstein, Is OSHA Unconstitutional (142).
Top-5 Labor SSRN Downloads
- 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 (125).
- Laura J. Cooper, Mario Bognano, & Stephen F. Befort, How and Why Labor Arbitrators Decide Discipline and Discharge Cases: An Empirical Examination (119).
- Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accomodation Provision (103).
- Katherine V.W. Stone (photo above), The Future of Labor and Employment Law in the United States (92).
- Rafael Gely (left) & Timothy Chandler (right), Card Check Recognition: New House Rules for Union Organizing? (75).
Top-5 International Employment & Labor Law SSRN Downloads
- 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 (125).
- Lauren Carasik (photo above), Think Glocal, Act Glocal: The Praxis of Social Justice Lawyering in a Global Era (82).
- Stefano Liebman, Multi-Stakeholders Approach to Corporate Governance and Labor Law: A Note on Corporate Social Responsibility (59).
- Leticia Saucedo, A New "U": Organizing Victims and Protecting Immigrant Workers (55).
- Aukje A.H. van Hoek (photo above), Transnational Corporate Social Responsibility: Some Issues with Regard to the Liability of European Corporations for Labour Law Infringements in the Countries of Establishment of Their Suppliers (43).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Michael D. Hurd & Susann Rohwedder, The Retirement Comsumption Puzzle: Actual Spending Change in Panel Data (297).
- Yaniv Grinstein, David Weinbaum, & Nir Yehuda, Are Perks Excess? Evidence from the New Executive Compensation Disclosure Rules (188).
- Ian Hathaway & Sameer Khatiwada, Do Financial Education Programs Work (157).
- Candace Budy & Richard Bales, Naming a Defendant in an ERISA Action (132).
- John Bronsteen (photo above), Brendan S. Maher, & Peter K. Stris, ERISA, Agency Costs, and the Future of Health Care in the United States (106).
May 23, 2008
It's Friday of a Holiday Weekend, So . . .
Have fun (is that the word?) with this one courtesy of Jezebel (I will just let the piece speak for itself and refrain from further comment):
The Insane Story Of Stuart Miller's Hollywood Sperm Bank Bondage Cult
Meet Stuart Miller. You thought Dov Charney was a creepy boss? In Stuart's defense, he runs a sperm bank. But Growing Generations is a high-end sperm (and surrogate) bank catering to Hollywood agents and assorted other corporate bigwig types that was just profiled in W Magazine! So you can imagine how Miller's old marketing manager Scott Glasgow found it a little inappropriate when the Boss Man, according to a lawsuit just filed in federal court in Manhattan, emailed him this picture of himself . . . .Still, Glasgow liked his job. He made $100,000 helping gay couples "create new life"! So he had endured Miller's insistence that they share a bed on the company "Vision Cruise" even though he had no interest in actually doing him. The boss was going to make him VP! But then came all the cult classes:
See, Stuart Miller made all his employees sign up for that Landmark Forum thing.
The Landmark Forum was the invention of a used-car salesman named Jack Rosenberg who changed his name to Werner Erhard after reading a story on some prominent German dudes in Esquire and got all sorts of self-absorbed seventies philosophical narcissists to sign up for his classes before fleeing to the Caymans in the wake of a 60 Minutes expose, after which he left the Landmark "brand" to his older brother for a rumored $1 but an actual multimillion dollar sum. The Forum all but locks people in rooms and uses a time-honored cult regimen of weird jargon, relentless repetition and food deprivation to get them to spill their innermost secrets/fears/insecurities and and shake off their "victim mentalities" but paradoxically convinces everyone who calls it a cult that the Forum is a huge misunderstood victim of societal prejudice and hate.
"46. Accounts of EST seminars describe seemingly religious experiences. For example, a former participant described portions of the course as "filled with moans, sobs, whimpers, and cries…an earsplitting scream…writhing and flailing in the air." Plaintiff Glasgow witnessed very similar reactions when he was forced to attend Landmark sessions."
"53. When Plaintiff Glasgow expressed this uneasiness, Defendant Miller's only response was that Landmark is "very much the language of the company"
And bondage was the "bondage" of the company!
and that "all of the company's executives, owners, and board members have benefited from taking multiple landmark seminars."
"Upon accepting the promotion to the position of Director of Marketing, he even asked Defendant Miller if he could discontinue the Landmark sessions.At such time, Defendant Miller told him specifically that the Landmark seminars were mandatory for company executives and was all part of being a "team player."
But back to the sex. Basically, Scott Glasgow agreed to sleep in Stuart Miller's bed on business trips if he didn't try anything, but then woke up in the middle of the night to find him caressing his head, which was weird, and he moved to the couch. Then Stuart made him dress in drag for a video presentation that subsequently got aired to clients and held an employee retreat where he showed him his ass during a "team building" exercise. There was a bunch of other creepy stuff and finally Glasgow asked to get his own bed on business trips and Miller accused him of being an "anger addict" and told him that he "and everyone else in the company were afraid to work with him." . . . .
Estreicher and Yost on Measuring the Value of Class and Collective Action Employment Settlements
Samuel Estreicher (NYU) and Kristina Yost (Jones Day) have given us a preview of their new piece: Measuring the Value of Class and Collective Action Employment Settlements: A Preliminary Assessment.
From the Introduction:
There has been a recent debate in the literature on the relative merits of arbitration,
individual litigation, and class action litigation in providing adequate remedies for disputes
arising out of the employment relationship. For the last decade and a half, the debate centered on whether arbitration provided a fair forum for plaintiffs, despite the relative informality of the process, the employer’s ability to tailor procedures, and the claimed propensity of arbitrators to curry the favor of repeat-player employers. The empirical literature has not borne out these criticisms. Almost without exception, the studies find that employment arbitration is quicker; less costly; and results in a win-loss rate that is no different than in litigation, with median awards somewhat lower (perhaps due to the fact that low-value claims are more likely to proceed to hearing in the more informal process of arbitration).
With the introduction by employers of express provisions in employment arbitration
agreements purportedly barring class action claims, the debate has shifted to the relative merits of individual arbitration versus class action litigation of employment claims. Proponents of class action litigation make two empirical arguments for the superiority of their preferred mode of dispute resolution over individual arbitration. First, it is maintained, class actions are likely to do a better job of providing compensation for claimants (and thus deterring employer
wrongdoing) because by aggregating claims in a single proceeding, the employer will not be able to benefit from the costs of delay or costs of relitigating underlying liability in individual
proceedings. Second, it is further argued, class actions provide the only practicable vehicle for obtaining redress of certain low-value claims which, if required to be asserted on an individual basis, would never be championed, thus allowing the employer to escape with impunity. Thus, plaintiff advocates argue, with some support in the courts,3 there should be a nearly blanket rule banning agreements precluding class action treatment for certain types of employment claims . . . .
For this study, we have assembled a data set of major employment settlements reached
since 1993. Employment claims are those arising under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans
with Disabilities Act of 1990 (“ADA”), and other federal and state anti-discrimination laws, the
Fair Labor Standards Act (“FLSA”) and similar state wage-hour laws, and the Employee Retirement Income Security Act (“ERISA”).
Our essential finding is that, contrary to assumptions of some academic commentators
and courts, mean individual potential recoveries and (with the exception of certain ERISA and
state/federal off-the-clock claims) median potential individual recoveries are not negative-value
amounts. One therefore cannot assume as a prima facie matter that such claims would not be pursued by individual employees, whether in arbitration or litigation. Much, of course, depends on institutional design -- the costs of access to the forum, the delay factor, and whether attorney representation is required. Class actions arguably reduce access costs and provide a mechanism for funding legal counsel but do so in a manner which through aggregation of claims may reduce the value of individual claims and entail a considerable loss of party autonomy. We hope to provoke additional empirical research on whether class actions do a better job at providing compensation, both as to amount (net of costs) and time from claim to recovery, than individual arbitration; and whether any such difference outweighs the loss of party autonomy inherent in class adjudication.
Innovative piece that is likely to bring some additional debate and response. The authors ask that there be no reproduction or dissemination of the piece without express consent of the authors.
Barbie Sues Bratz
On the front page of today's Wall Street Journal is an article by Nicholas Casey on a suit Mattel has filed against MGA Entertainment. MGA manufactures Bratz dolls, which are designed to be edgier than Barbie and which have cut significantly into Barbie's market share. At the heart of the case is an employment issue: Mattel alleges that Bratz designer Carter Bryant was employed by Mattel when he thought up the idea for the Bratz line. If so, says Mattel, Bratz belongs to Mattel. The stakes are huge: Bratz sales are more than $500 million per year, and Barbie sales were down 12% in the first quarter of this year.
For more, see Brawl Over Doll Is Heading To Trial.
May 22, 2008
President Signs GINA
We've been following the progress of the Genetic Information Nondiscrimination Act (GINA) for a while now. Thus, I'm happy to report that yesterday President Bush signed it into law. The full White House Press Release stated:
I want to thank the members of Congress who've joined us as I sign the Genetic Information Nondiscrimination Act, a piece of legislation which prohibits health insurers and employers from discriminating on the basis of genetic information. In other words, it protects our citizens from having genetic information misused, and this bill does so without undermining the basic premise of the insurance industry.
I also want to pay homage today to -- and not only to members of the Congress who are behind me, but also to Senator Ted Kennedy, who has worked for over a decade to get this piece of legislation to a President's desk. All of us are so pleased that Senator Kennedy has gone home, and our thoughts and prayers are with him and his family.
Now it's my honor to sign the Genetic Information Nondiscrimination Act.
You can find the text of the law here.
Workplace Flexibility Correlates with More Women and Minorities in Workplace
The Institute for Workplace Studies (IWS) at Cornell Industrial & Labor Relations brings to our attention the latest edition of a study of U.S. workplaces on flexible workplaces.
[The study] finds that employers with more women and more minorities in top positions, and nonprofits organizations, are more likely to offer flexible workplaces. These are just two of the significant findings to emerge from the landmark 2008 National Study of Employers (NSE), released today by Families and Work Institute . . . .
First conducted in 1998, the 2008 NSE is the most comprehensive and far-reaching study of initiatives provided by U.S. employers to address the changing needs of today’s workforce. Designed by Families and Work Institute and conducted by Harris Interactive, Inc., the NSE interviewed 1,100 employers with 50 or more employees located throughout the United States and provides trend data on changes that have occurred over the past 10 years. The study addresses questions such as:
* What is the prevalence of programs, policies, and benefits that address the needs of the changing workforce, including workplace flexibility, caregiving leaves, child and elder care assistance, and health care/economic security benefits?
* Are smaller or larger employers more likely to provide these programs, policies, and benefits?
* Have these initiatives increased or decreased in the past ten years?
* Which employers provider higher levels of support to their employees?
“There has been surprising stability in many of the practices, policies and programs of U.S. employers over the past 10 years,” said Ellen Galinsky, president and founder of Families and Work Institute and lead author of the study. “The NSE confirms that in the face of economic volatility companies have generally held steady or reduced benefits that carry hard costs. Yet in certain areas including domestic partner benefits and access to information on support services we are seeing an expansion of benefits. We find it particularly interesting that having an employee base composed of a greater percentage of women, or the presence of women and minorities in senior positions, is correlated with a more flexible workplace.”
Count me as unsurprised. This is exactly what happens when the decisionmakers themselves require a flexible workplace.
Update on ALI Proposed Restatement
First, my apologies for not updating folks sooner. I was at yesterday's proceedings at the ALI annual meeting, where the proposed Employment Law Restatement, which Paul mentioned here, was discussed.
First, let me update you on some of the nuts and bolts if you haven't kept up on the issue. A number of years ago, the ALI decided to begin a project to restate Employment Law. It seemed to the leadership that this was the only large area of state common law to date neglected by the restatement project. To provide guidance to judges and litigants, the ALI took it on. Samuel Estreicher (NYU) is the chief reporter. Michael Harper (BU), Stewart Schwab (Cornell), and Christine Jolls (Yale) were reporters also working on the draft. Christine left the project in 2006, and the ALI is seeking two additional reporters now. There are between 25 and 30 additional advisors, liaisons from the ABA, AAJ (formerly ATLA), College of Labor and Employment Lawyers, and NELA. There is also a members consultative group, consisting of about 175 more labor and employment experts, including many law professors (and at least a few frequent contributors here).
The projected table of contents, with the initials of the reporter in charge of drafting, is: Ch. 1 Existence of Employment Relationship (MCH); Ch. 2 Employment Contracts: Termination (SE); Ch. 3 Employment Contracts: Compensation and Other Terms and Conditions of Employment (SE); Ch. 4 The Tort of Retaliation in Violation of Public Policy (SJS); Ch. 5 Defamation and termination-related torts; Ch. 6 [Other] Employment Torts (MCH); Ch. 7 Workplace Privacy and Autonomy; Ch. 8 Employee Responsibilities (SJS); Ch. 9 Evidentiary Issues and Remedies; Ch. 10 Alternative Dispute Resolution; Ch. 11 Secondment of U.S. Workers Abroad; and Appendix: Inventory of Federal Laws Regulating Employment Relationship.
Currently, chapters 1, 2, and 4 have been drafted and approved by the ALI Council. These chapters have been through substantial revisions over time.
Now for the controversy. As Paul mentioned in his post, Matthew Finkin sent a petition to the ALI, asking it to table the entire project until the reporters consult with the Labor Law Trust Group, a group of prominent academics whose scholarship focuses on labor and employment law. That petition was discussed after extensive discussion of the substance of the first two chapters, because that discussion illuminated many of the points of contention.
Some of the concern about the draft focused on the definition of employee. Dennis Nolan (SC), for example, submitted written comments, concerned that the current definitions do not acknowledge the extent of employee dependence on employers. Lea VanderVelde (Iowa) agreed and also referred to Marc Linder's (Iowa) book, which is cited in the reporters' notes in the draft and a concurrence by Frank Easterbrook on the 7th Circuit, both of which argued that to say that a person who performs services and gets paid is either an employee or an independent contractor ignores reality, and that there is really a third category of "dependent contractor." The reporters disagreed that this was an accurate statement of the current state of the law, and also said that the language in the black letter and the commentary was an attempt to really get at the dependence issue as the test for when a person is an employee.
The other large point of contention was with the statement of the at-will rule. Opponents had two main arguments: 1. this isn't actually the default rule in most jurisdictions and to say it is will prevent the courts from acknowledging the evolution of the law in those jurisdictions while also preventing evolution in others; and 2. the current draft does not acknowledge the weight of critique, primarily by academics, of the rule. The response to these critiques was first a disagreement that at-will was not really the default rule in most jurisdictions because nearly every jurisdictions' courts say that it is. Only Montana, by statute, lacks the rule. Additionally, the reporters argued, the rule is simply a default -- that this proposed restatement is actually quite generous in the exceptions that it recognizes, which will promote evolution.
In addition, there were the usual arguments on the merits of the rule by management-side lawyers on one side, and labor side lawyers on the other.
Finally, the discussion moved to the broader issues of whether the project should be tabled pending consultation with the Labor Law Trust Group or whether that Group should be invited to submit amendments to the proposed restatement. The proponents of those argued that the Group had great expertise to tap into, that the provisions currently drafted did not reflect the fluidity of the law and that they would calcify its development, and that the traditional role of the ALI to promote reform and critique aspects of the law that are unjust was not being fulfilled. Another member suggested that perhaps this is an area more appropriate for Principles rather than a Restatement.
Lance Liebman, the Director, and the reporters had a number of responses. First, many of the members of the Labor Law Trust Group, or at least many of those academics who had signed Finkin's petition, were involved in the project in the members consultative group. Thus, the Labor Law Trust Group already had significant input. Additionally, they argued, employment is an important area of common law, most supreme courts have weighed in on these topics, a restatement is not binding, the draft is still in development, and the project is just trying to provide some guidance for courts. All reasons not to table the project completely. Moreover, disagreement was no reason to table it, and this project is no more controversial than prior projects of the ALI. Finkin's petition was rejected by the membership.
At the end, the membership sent the draft back to the reporters for further revisions in light of the points made in the discussion.
Overall, the debate on the merits of the project and on the substance of the draft really highlighted some of the tension between academia and practice (or at least the gulf that many in practice believe exists), between different views of what law is (the stated rules v. the norms demonstrated by practices that people actually engage in), and between the role of a restatement in stating the law and in reforming that law.
At the very least, this is an important issue to monitor and a great opportunity for anyone interested to get involved on one side or the other. I'm trying to get a copy of the transcript of the meeting, and if I do, I'll make that available.
The Equal Pay Act and Pregnancy Discrimination
The DOJ has a press release today on the United States settling a civil rights lawsuit alleging pregnancy discrimination against the New York State Corrections Department. The settlement requires payment of $972,000 in damages, plus other non-monetary relief, to 23 female correction officers.
Our favorite retired EEOC guy, Jack Sargent, poses the following question:
Q: When does the Equal Pay Act prohibit pregnancy discrimination?
A: When the EEOC uses it to challenge an underlying pregnancy discrimination issue that results in less benefits to fems.
Here, the EEOC used the EPA to sue the NY Dept of Corrections for, fundamentally, a pregnancy discrimination issue. Remember that only the DOJ can sue a public employer under Title VII. USDOJ did follow the EEOC's EPA action and sued under Title VII and, together, EEOC and DOJ reached a near million dollar settlement.
I agree with Jack that this looks like a good initiative and creative litigation by the EEOC and remarkable coordination of litigation efforts by EEOC and DOJ.
EEOC has its own press release here.
Zelinsky on State-Administered Retirement Plans for the Private Sector: A Bad Idea
Ed Zelinsky (Cardozo) gives us the heads up on his blog post on states and private retirement systems on the Oxford University Press blog:
Legislators throughout the country are proposing that states start to administer private sector retirement savings plans. While the details of these proposals vary from state to state, they all provide that the states should embark upon the business of managing private sector individual account arrangements.
In Connecticut, for example, the state senate, before recently adjourning, passed S.B. 652 which would have created a state-sponsored “universal 401(k).” This legislation would have mandated the state’s comptroller to establish and administer a state-run “tax-qualified defined contribution retirement program” for the self-employed, the tax-exempt institutions, and the “small employers” of the Nutmeg State.
On the other side of the country, currently pending in the California legislature is AB 2940. If enacted, this legislation would authorize CalPERS, the Golden State’s public pension plan, to accept from California residents payroll deposits for state-administered individual retirement accounts. Similar legislation has been introduced in a variety of other states.
The concern animating all these proposals is well-founded. The defined contribution paradigm has worked well for many American households, in particular, middle- and upper-middle families who save and invest through 401(k) plans and IRAs as well as the employees of large employers which sponsor and typically match such employees’ 401(k) contributions. Despite this success, it is troubling that lower-income workers and smaller employers are severely underrepresented in the individual account system . . . .
There is an important step the states can take if they are serious about encouraging 401(k) and IRA participation among low-income individuals. In particular, the states could, in their own income taxes, match part or all of the federal savers’ tax credit which subsidizes the retirement saving of low-income persons by providing a tax credit if a low-income worker contributes to an IRA or 401(k) account.
However, there is no compelling case for the states to enter the private retirement savings business. Let them put their own pensions on solid financial footings first.
I sound like a broken record whenever I write about Ed's thought, but I agree. There is bound to be a grand DCP hangover when the next generation has to start to live on their 401(k) accounts and such during retirement.
Suja Thomas from Cincinnati to Illinois
Suja Thomas, currently at Cincinnati (but who visited Northwestern last fall and Vanderbilt this spring), has accepted a tenured position at the University of Illinois College of Law.
Suja teaches Employment Discrimination, Civil Procedure, Evidence, Legal History, and Sports and the Law. Her most recent home-run article, Why Summary Judgment is Unconstitutional, was published last year in Virginia Law Review. It has received tremendous attention in both the popular and the legal press, and Suja has spoken widely on the topic.
In 2003, Suja received Cincinnati's Goldman Prize for teaching excellence. Last year, she received the Harold C. Schott Law Review award for her article on summary judgment, and more recently, Suja received the Harold C. Schott Scholarship Award, which recognizes outstanding research and scholarly achievement by a member of the Cincinnati faculty. She currently is ranked #2 (behind Paul Caron) in SSRN downloads at Cincinnati.
Suja earned her bachelor of arts degree from Northwestern University in mathematics. She received her law degree from New York University School of Law, where she served as an Articles Editor on the NYU Law Review and where she received several awards including the Leonard M. Henkin Prize for her note on equal rights under the 14th Amendment, the Mendes Hershman Prize for excellence in writing in the field of property law and the William Miller Memorial Award for outstanding scholarship in the field of municipal law. After a federal clerkship in Chicago, Suja practiced law in New York City with Cravath, Swaine & Moore; Vladeck, Waldman, Elias & Engelhard, P.C; and Weil, Gotshal & Manges, LLP.
Please join me in congratulating Suja on her new appointment!
May 21, 2008
Eisenbrey's Take on Lofaso's "September Massacre"
Ross Eisenbrey (Economic Policy Institute) has posted an essay on the ACS Blog entitled "The Weakening of a National Rights Law," which discusses the Anne Marie Lofaso paper we posted on yesterday. Eisenbrey largely agrees with Lofaso's analysis the NLRB's recent "massacre" and adds these thoughts:
Lofaso sees Dana as a symbol of the Bush Board’s “vigorous resistance to union organizing” and potentially, the dawn of “a new era of government repression of unionism.” This alarming view might seem extreme, but the recent history of Australia shows that a hostile government can swiftly turn a nation’s laws from encouraging union activity to criminalizing it.
What Lofaso fails to mention is that the Bush Board is well aware that its election process is totally broken and has become a snare for unions and workers who want to organize. Employers draw out the Board’s election process to enable a campaign of terror against employees with union sympathies, subjecting them to one-on-one meetings with supervisors and captive audience speeches condemning unions and threatening terrible consequences in the event of a union victory, using local businesses and community leaders to attack the union, and firing or otherwise punishing union supporters. Employers know that there are no effective remedies for their illegal actions; there are no fines for violating the right to join a union. When the Bush Board hinders voluntary recognition it does so because most successful union organizing in recent years has been done outside of the Board’s election process.
Dana is one more compelling reason for Congress to pass the Employee Free Choice Act, which would give employees the right to demand recognition for their union upon presentation of a valid majority of signed authorization cards. The choice of voluntary recognition or an election would no longer belong to the employer, but would be for a majority of employees to decide. The Act would also establish monetary fines for violations of the right to join a union and give unions the right to have an arbitrator decide the terms of a first contract if the union and employer can’t reach agreement on their own.
Anne Marie Lofaso’s paper on the September Massacre makes it clear, however, that the Employee Free Choice Act, however essential, is only a start down the road to restoring union rights, union strength, and the bargaining power of American workers. Decades of bad law will have to overturned if we are to restore the balance of power between workers and corporations that the New Deal envisioned.
I suspect that we'll have many more of these interesting conversation as the 2008 election nears and depending on the outcome, even more afterward.
9th Circuit Deals Body Blow to Military's DADT Policy; Victory for Sexual Privacy Rights of Public Employees
In a stunning turn of events, the Ninth Circuit Court of Appeals has found (2-1) that impingement on sexual orientation by the military's Don't Ask, Don't Tell policy warrants something akin to intermediate scrutiny under the due process clause and remands the case for further findings based on its new Lawrence-based test. Amazingly, the partial dissent would apply strict scrutiny!
The case is Witt v. Dept. of Air Force, 06-35644 (9th Cir. May 21, 2008). Here are some highlights of the opinion:
Plaintiff-Appellant Major Margaret Witt (“Major Witt”) sued the Air Force, the Secretary of Defense, the Secretary of the Air Force, and her Air Force commander (“the Air Force”) after she was suspended from duty as an Air Force reservist nurse on account of her sexual relationship with a civilian woman. Major Witt alleges that 10 U.S.C. § 654, commonly known as the “Don’t Ask, Don’t Tell” policy (“DADT”), violates substantive due process, the Equal Protection Clause, and procedural due process. She seeks to enjoin DADT’s enforcement . . . .
In July 2004, Major Witt was contacted by Major Adam Torem, who told her that he had been assigned to investigate an allegation that she was homosexual. She declined to make any statement to him. An Air Force chaplain contacted her thereafter to discuss her homosexuality, but she declined to speak to him, as well. In November 2004, Major Witt’s Air Force superiors told her that they were initiating formal separation proceedings against her on account of her homosexuality . . . .
Major Witt argues that Holmes, Philips, and Beller are no longer dispositive in light of Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a Texas statute that banned homosexual sodomy. Accordingly, to resolve this appeal, we must consider the effect of Lawrence on our prior precedents . . . .
Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate . . .
We therefore conclude that Lawrence applied something more than traditional rational basis review. This leaves open the question whether the Court applied strict scrutiny, intermediate scrutiny, or another heightened level of scrutiny. Substantive due process cases typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other cases. When a fundamental right is recognized, substantive due process forbids the infringement of that right “at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 392, 301-02 (1993) (emphasis omitted). Few laws survive such scrutiny, and DADT most likely would not. However, we hesitate to apply strict scrutiny when the Supreme Court did not discuss narrow tailoring or a compelling state interest in Lawrence, and we do not address the issue here . . . .
We thus take our direction from the Supreme Court and adopt the first three heightened-scrutiny Sell factors as the heightened scrutiny balancing analysis required under Lawrence. We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest . . . .
Here, applying heightened scrutiny to DADT in light of current Supreme Court precedents, it is clear that the government advances an important governmental interest. DADT concerns the management of the military, and “judicial deference to . . . congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Notably, “deference does not mean abdication.” Id. “Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs . . . .” Weiss v. United States, 510 U.S. 163, 176 (1994).
However, it is unclear on the record before us whether DADT, as applied to Major Witt, satisfies the second and third factors. The Air Force attempts to justify the policy by relying on congressional findings regarding “unit cohesion” and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest. Remand therefore is required for the district court to develop the record on Major Witt’s substantive due process claim. Only then can DADT be measured against the appropriate constitutional standard.
I'm an absolutely giddy over this case. Although the court did not take my suggestion of applying the Pickering analysis in the substantive due process context (see here, here, and here), it is consistent with my idea that Lawrence means heightened review for public employee's sexual privacy interests.
Two more points: on the one hand, because this case arises in the military environment, it is not an ideal case to establish the sexual privacy rights of public employees and Witt may lose on remand. On the other hand, the finding of heightened review is significant in and of itself and there is nothing in the opinion that limits its application to the military.
I suspsect, of course, a petition en banc to be filed and maybe eventual Supreme Court review, but today is a day of celebration and vindication for all those who believe strongly in the sexual privacy rights of public employees.
Hat Tip: Paul Mollica
Liebman on Labor Law
Wilma Liebman, member of the NLRB and dissenter extraordinaire, has posted on SSRN her article Labor Law Inside Out. The article has been published at 11 Working USA: The Journal of Labor and Society 9 (March 2008). Not surprisingly, she is unhappy with the direction the Bush II Board has taken labor law. Here's the abstract:
Today, some sixty years after passage of the Taft-Hartley amendments to the National Labor Relations Act, it seems that the centerpiece of the Act has become the right to refrain from protected, concerted or union activity. The original 1935 legislation was enacted, of course, to protect the right to engage in that activity, and to encourage the practice of collective bargaining. For nearly sixty years after Taft-Hartley added the right to refrain to Section 7's employee protections, the Board has struggled to reconcile the sometimes competing statutory goals of promoting the stability of collective bargaining relationships and the individual freedom of choice, preserved by Section 7. That has changed, however, as the National Labor Relations Board, in several recent decisions, has said for the first time, that freedom of choice -- which is to say, the freedom to reject union representation -- prevails in the statutory scheme. It is as if the law, in abandoning the primacy of achieving economic justice through collective action, has been turned inside out. The stakes for this shift in policy are great.
Ireland and Bales on Employment Discrimination Under Title II of the Americans with Disabilities Act
Jamie Ireland (student) and Rick Bales (N.Ky./Chase) are at it again and have posted on SSRN their forthcoming piece in the Administrative and Regulatory Law News: Employment Discrimination Under Title II of the Americans with Disabilities Act.
Here's the abstract:
Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of discrimination. Title II prohibits discrimination by providers of public services. Title I contains several exclusions (federal employees, employees of small state agencies) and procedural requirements (filing a charge of discrimination before filing suit) that are not in Title II. If an employer is covered by Title II but not by Title I, may that employer be sued for disability discrimination in employment?
The circuits are split on the issue. The Ninth Circuit has held that because Title I explicitly covers employment, and because Title II covers public services but does not specifically mention employment, Congress must have intended for Title II not to cover employment. This article, however, agrees with the circuits that have held that Title II covers employment discrimination claims, for three reasons. First, the plain textual language of Title II broadly prohibits all discrimination by public entities. Second, the ADA's legislative history indicates that Congress intended Title II to apply to employment discrimination. Third, the Department of Justice's regulations interpreting Title II are on point and entitled to deference.
As they point out in the abstract, this is an updated and
significantly condensed version of an article that will be published
imminently at 28 N. Ill. U. L. Rev. (2008).
Paul Secunda (Mississippi, for a few more days, then Marquette) has just posted on SSRN his article "The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law. Here's the abstract:
One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.
After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and one new path for courts to take in applying employment benefits law in the immigration milieu. First, Congress should amend ERISA to add ERISA Section 4(b)(6) to provide ERISA coverage for American employees working abroad as long as ERISA does not conflict with the laws of a foreign country. Such a law would also make clear that ERISA's extraterritorial application is of a limited nature and does not extend to foreign employees working abroad for American companies or their subsidiaries. Second, Congress should pass comprehensive immigration legislation and include within that legislation a provision which would make clear that documented workers maintain the same rights to employee benefits under ERISA as any other U.S. citizen. Third, courts in the future should consider ERISA policies and the dissenting opinion in Hoffman Plastics to support a conclusion that undocumented workers should remain eligible for appropriate relief under ERISA.
These steps may appear fairly modest for one who wishes to see concrete movement toward a coherent, global employee benefit scheme, but to quote Lao Tzu: "The tallest tree begins as a tiny sprout, the highest monument, as a clod of dirt, the longest journey, with a first step."
This is indeed a much-needed first step, critical now that labor markets, like commodity and product markets, are global.
May 20, 2008
Bonventre on New York Public Sector Labor Law
Vincent Bonventre recently gave a presentation entitled “Public Sector Labor Law in the Kaye Court," during the 40th Anniversary of the Taylor Law Conference. His presentation dealt with the New York Court of Appeals' approach to public sector labor law. According to a description generously supplied by Vin:
[The presentation] identified patterns and trends in the decisions of the New York Court of Appeals, the state’s highest court, over the past fifteen years—the period during which Judith S. Kaye has served as Chief Judge. A review of the rulings in the twenty-six cases dealing with public sector labor issues that came before the court while Kaye presided in the center seat is revealing. Overall fifteen year patterns and recent trends emerge from a consideration of unanimous versus divided decisions, pro-employee versus pro-management ones, pro versus con-collective bargaining rulings, decisions in which public policy was deemed a bar to collective bargaining or to arbitration or to certain terms or conditions of employment versus those decisions in which public policy was not deemed at risk. All of the foregoing is illustrated in graphs which underscore these contrasts in the cases collectively and highlight the recent trends which suggest a pro-management change in the court’s direction.
From what I heard about the presentation, it was fascinating. It's also a nice reminder that state labor law is important--at least in states that have labor law, unlike mine. To see a Powerpoint of the presentation, follow the above link and click on "Taylor Law Conference."
Hat Tip: William Herbert
Court Rejects NLRB Button Ban Decision
Another pro-employer decision, another circuit court reversal. This one from the 9th Circuit in Washington State Nurses Association v. NLRB (May 20, 2008). The case involved a hospital's ban on union buttons, which stated "RNs Demand Safe Staffing" and "Staffing Crisis--Medical Errors." The NLRB (with Member Liebman dissenting) rejected an ALJ's finding that the ban violated 8(a)(1). The NLRB concluded that despite the ban's presumptive unlawfulness, the hospital showed special circumstances--that the buttons would disturb patients--warranting extra measures. The court, however, sharply rejected the the NLRB's characterization of the case:
The Board’s determination that special circumstances justified Sacred Heart’s “RNs Demand Safe Staffing” button ban is not supported by substantial evidence in the record. In fact, it is not supported by any evidence. The record reveals that the buttons were worn for several months without incident. Sacred Heart claims that the button’s message would disturb patients. That assertion is speculative at best. Moreover, Sacred Heart’s speculative concern is contradicted by actual evidence in the record that there was never any disturbance involving the button. There is no evidence in the record that supports the Board’s special circumstances finding. . . .
In reversing the ALJ’s decision, the Board explained that an employer need not show actual disturbance of patients before prohibiting union activities. The Board concluded that the button’s “inherently disturb[ing]” message was enough to support a special circumstances finding. The Board also pointed to the offer of proof, establishing that nurse supervisors “expressed concern over the impact the button may have on patients.” The Board’s approach was contrary to its established precedent, to our sister circuit’s precedent, and to the basic adjudicatory principle that conjecture is no substitute for evidence.
So tell us how you really feel.
It's good to see a court remind the NLRB that presumptions are to be taken seriously. It's the employers burden to show that special circumstances actually exist--not to hypothesize that such concerns might exist.