Saturday, February 16, 2008
- Michael S. Lynk (photo above), Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada (218).
- Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (58).
- Michael J. Zimmer, Decent Work with a Living Wage (33).
- Leilani O. Baumanis & Robert W. McGee, The Economic, Cultural, and Ethical Effects of International Outsourcing (25).
- Shae McCrystal, Smothering the Right to Strike: Work Choices and Industrial Action (20).
- Susan Liemer & Hollee Temple, Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time (213).
- Richard L. Kaplan (photo above), Top Ten Myths of Social Security (151).
- Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (142).
- A.G. (Tassos) Malliaris & Mary Malliaris, Investment Principles for Individual Retirement Accounts (66).
- Albert Feuer, Who Is Entitled to Survivor Benefits from ERISA Plans? (54).
Friday, February 15, 2008
Mary Pollock, Legislative Vice-President of Michigan NOW, writes the LERA-listserv about a new initiative in Michigan to try to more accurately classify workers as either employees or independent contractors:
In the last monthly round-up of news, I noticed that NJ governor Corzine had issued an Executive Order on worker misclassification.
On February 1, 2008, Michigan Governor Jennifer Granholm issued Executive Order 2008-1 establishing an Interagency Task Force on Employee Misclassification. The intent of the Executive Order is to examine whether employers in Michigan and elsewhere are misclassifying individuals they hire as independent contractors, even when those individuals should legally be classified as employees. Misclassification of an employee as an independent contractor, the EO says, potentially violates a number of legal obligations under state and federal labor, employment, and tax laws, and may harm Michigan workers who are deprived of their important legal rights and protections. Misclassification is also unfair to the overwhelming majority of Michigan job providers who play by the rules because law-abiding businesses are placed at a competitive disadvantage compared to those who avoid their legal obligations, the Order says. The Task Force is to report each July 1 on its findings and recommendations. Read the Executive Order here.
Mary wonders whether there maybe a national trend going on at least among Democratic Governors. My question is: Why is this a unqiuely Democratic issue?
In my paper, Whither the Pickering Rights of Federal Employees?, I argue that not only do federal employees have no chance of succeeding on a First Amendment free speech Pickering claim against their public employer, but that they have little chance of succeeding in Whistleblower Protection Act (WPA) claims either.
One of the cases that I discuss in detail in my paper involves Teresa Chambers and her firing from the National Park Police as Chief because of her public disagreement with the Department of the Interior over budget and security issues. My discussion of Chambers v. Dept. of Interior focused on the MSPB's flawed First Amendment analysis under Garcetti:
The administrative law judge upheld her dismissal finding that she had disclosed sensitive security and budget information, failed to carry out supervisor's instructions, and failed to follow the chain of command.196 On the First Amendment issue, the AJ held that she did not speak as a citizen and therefore, under Garcetti v. Ceballos, had no First Amendment protection.
The Board granted the [petition for review] and affirmed the AJ decision. Specifically on the
First Amendment claim, the Board recognized that public employees have constitutional
rights under Connick and Pickering, but then stated the applicable Federal Circuit precedent as requiring that, "[e]mployees' free speech rights must be balanced . . . against the need of government agencies to exercise 'wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.'” Nevertheless, the MSPB decided the case under Garcetti, finding that her speech to the reporter was pursuant to her official duties and thus, not protected by the First Amendment. In support of this conclusion, the Board noted that Chambers had contested a gag order that would not allow her to speak to the press under any circumstance because it was her job to speak to the press about agency issues. The Board thus defined the scope of her job duties based on how they believed Chambers perceived them.
Although the Fedeal Circuit did not revisit the First Amendment claim, it did reverse and vacate (2-1) the MSPB on what constitutes a protected disclosure under the WPA, thus being one of a handful of cases in which a federal employee whistleblower has earned a victory at this level (though it does necessarily mean she will win on remand, it is another chance).
Next week, I will be talking why through cases like Chambers, federal employees have it even worse than their state and local employee counterparts under Garcetti at the First Amendment Law Review Symposium at UNC.
Thursday, February 14, 2008
the Labor Board’s election processes have been modified to incorporate the display of an American flag at all Agency-conducted representational elections. This new element of the election process is based on the belief that the display of an American flag will impress upon all the participants to elections -- employers, unions, and most importantly voters -- the solemnity and importance of the Agency’s election process. General Counsel Meisburg noted that some of these voters, including new immigrants to our country, may be participating in free and fair elections for the first time. At the conclusion of what may be a contentious period of electioneering prior to balloting, these voters, like all participants and observers, should be reminded that the Agency’s impartial election processes are guaranteed by the full force of the Federal Government. Field personnel conducting Agency elections will supply the flag and be trained in flag etiquette. The display of the American flag will in no way delay or otherwise impede the election process.
Brilliant. Nice to see that our two-member dysfunctional Board is accomplishing something useful. I suppose loyalty oaths will be next. What an embarrassment!
I wanted to add a couple of comments to Rick's post. The practical effects of this decision have been disturbing to many regional employees. The NLRBU--never shy about taking an opportunity to go after the General Counsel recently--sent out a press release lambasting the order. Moreover, this requirement, no matter how well-meaning, can cause real problems. Many NLRB elections are very small affairs. Often only one or two NLRB officials conduct an election and adding a flag large enough for its own case (which is what the order involves) can create a real burden. Indeed, the elections are often in very small rooms, so there's a question in many instances whether it's even possible to display the flag properly (I'm not even going to think about the folding procedure). I've also heard that the proposed flag allocation will be well short of what is needed. This shortage brings up another objection, which is a question about spending money on flags when many regions cannot hire people that they need.
My sense is that the GC's priorities is what's really galling to many employees. Rather than addressing significant issues regarding the NLRA's enforcement, he's literally resorting to waving the flag.
A final not-so-fun thought: new flag-based election objections.
So suggests this blurb from Employment Law360 (subscription required):
As parts of the United States economy started to trend downward at the end of 2007 and the beginning of this year, intellectual property attorneys began to gear up in anticipation of more work heading their way.
According to experts, an economic downturn usually creates more intellectual property legal work, including noncompetition agreements, nondisclosure agreements and trade secret litigation.
Makes sense as intellectual property becomes relatively more valuable to its owner.
Perhaps the increase in cases will lead to us seeing some new legal analyses in this area of employment law. For one thing, I am still curious to see how the debate comes out over whether it makes a difference to the enforceability of a noncompetition agreement whether an employee voluntarily resigns or is fired from employment.
Konstantinos Tzioumis (London School of Economics) and Rafael Gomez (London School of Economics and Political Science) have posted on SSRN their empirical study: "What Do Unions Do to CEO Compensation?"
Here's the abstract:
In this paper we estimate the relation between union presence within a firm and CEO compensation, using a unique panel of publicly listed companies for the period 1992 to 2001. We find that, on average, union presence: 1) is significantly associated with lower levels of total CEO compensation; 2) affects the mix of CEO compensation by providing higher levels of base pay but much lower stock option values; 3) lowers dispersion across the major components of CEO remuneration and 4) does not significantly reduce the performance sensitivity of CEO compensation as compared to non-union firms. These results are consistent with several models of union influence.
In other words, unions act as a necessary check on the excessive compensation CEOs would otherwise pay themselves. More money for the workers, less for the executive. How surprising.
David Oppenheimer (Golden Gate) writes to tell us that his school has made a new hire for the coming year in the labor and employment area, Heather Murr. He reports:
Heather will be joining the Golden Gate University School of Law faculty in the fall of 2008. She is currently serving as a Visiting Assistant Professor at the University of San Diego School of Law, where she has taught Gender Discrimination, Gender & Law, and Professional Responsibility. In 2005, Heather was the recipient of USD’s “Excellence in Teaching Award,” awarded to a visiting or adjunct faculty member. Her publications include “The Continuing Expansive Pressure to Hold Employers Strictly Liable for Supervisory Sexual Extortion: An Alternative Approach Based on Reasonableness,” 39 U.C. Davis Law Review 529 (2006).
Prior to teaching at USD, Heather’s practice focused on employment litigation and counseling. Heather is a Phi Beta Kappa graduate of the University of California, Riverside with a B.S. in economics and a B.A. in political science. She received her law degree from the University of California, Hastings.
Heather will be teaching torts and employment discrimination at Golden Gate University.
Welcome to the academy, Heather!
Wednesday, February 13, 2008
Larry Solum of the Legal Theory Blog brings to our attention a new labor law book by Ellen Dannin (Penn State/Dickinson) (pictured left), Michelle Dean (San Diego State - Business) and Gangaram Singh (San Diego State - Management) entitled Law Reform, Collective Bargaining, and the Balance of Power (Working USA, 2008).
Here is the abstract:
Despite Congress' having made clear policy statements in the National Labor Relations Act that the law was intended to promote equality of bargaining power between employers and employees; to promote the practice and procedure of collective bargaining as the method of setting workplace terms and conditions of employment; and forbidding construing the law "so as to either interfere with or impede or diminish in any way the right to strike," by early 1940, the courts had given employers the right to permanently replace strikers and implement their final offer at impasse. Judges have often justified these doctrines as promoting balance in bargaining. Critics contend that the doctrines have the capacity to destroy the right to strike, unbalance bargaining power, and divert parties from the process of bargaining collectively. Some have proposed allowing temporary but not permanent striker replacement. We use a bargaining simulation followed by a survey and debriefing comments to test these opposing claims.
Very interesting. Mackay Radio has always been the bane of
the labor movement and I would guess that the claims of management needs for
permanent replacements during an economic strike don't hold up. But, of
course, the overruling of Mackay Radio or a new amendment to the NLRA
disallowing permanent replacements probably is not something that can be
expected anytime soon.
Howard Bashman of How Appealing brings word of an interesting religious discrimination case decided recently by the Fourth Circuit:
A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision rejecting the EEOC's appeal from the grant of summary judgment against that federal agency in a religious discrimination case. On appeal, the EEOC argued that a Firestone subsidiary had failed to reasonably accommodate the beliefs of an adherent of the Living Church of God. The Fourth Circuit disagreed, holding that it would be too burdensome to give the employee as much time off as he was seeking.
The case, EEOC v. Firestone Fibers and Textiles Co., 06-2203 (4th Cir. Feb. 11, 2008), includes the following statements from the court:
The charge claimed that Firestone violated Title VII when it failed to provide Wise with a reasonable accommodation that would allow him to observe his Sabbath and religious holidays without being fired. After conducting an investigation, the EEOC determined that the evidence supported Wise’s allegations . . . .
For the reasons that follow, we cannot accept appellants’ interpretation of § 2000e(j) and hold that "reasonably accommodate" means what it says: reasonably accommodate. The problem with appellants’ "total" accommodation interpretation is that such a construction ignores the plain text of the statute, namely the inclusion of the word "reasonably" as a modifier of accommodate. If Congress had wanted to require employers to provide complete accommodation absent undue hardship, it could easily have done so. For instance, Congress could have used the words "totally" or "completely," instead of "reasonably." It even could have left out any qualifying adjective at all. Rather, Congress included the term reasonably,
expressly declaring that an employer’s obligation is to "reasonably accommodate" absent undue hardship — not to totally do so.
As the statutory language of § 2000e(j) makes clear, this is not an area for absolutes. Religion does not exist in a vacuum in the workplace. Rather, it coexists, both with intensely secular arrangements such as collective bargaining agreements and with the intensely secular pressures of the marketplace. Hence the import of the statutory term "accommodate . . . .
Because of the magnitude of the accommodation sought, and the sheer number of hours a small group of coworkers would have been forced to cover, it was sensible for Firestone to believe that Wise’s proposed accommodation was not a reasonable one.
All of this seems reasonable, but the more difficult question in any case is where the line falls between reasonable and unreasonable accommodation? Does the court's decision mean that religions with less holidays and sabbaths have more protection than those like the plaintiff in this case? Does that many any sense? Should the burden on an employer become greater the more intensively a religious adherent follows their beliefs? And what about the role of a collective bargaining agreement in this case? The court found that Barnett favored the employer, but was that right?
Of course, I do not know the answers to these questions, but I do know that the Hardison de minimis test does not strike the balance appropriately between employer interests and employee free exercise of religion claims.
Paul Mollica has his thoughts here.
Of course, this is a topic near and dear to my heart, so it was with great pleasure that I saw that one of the preeminent labor and employment scholar, George Rutherglen of Virginia, has written a piece entitled: Public Employees, Free Expression and the First Amendment.
From the abstract:
This article begins with a brief summary of existing law and the limited protection it accords to employee speech. These limitations are made all the more severe by the remedial framework in which claims of free arise. The general civil rights laws provide public employers with defenses of good faith, causation, and immunity, all of which restrict the effective scope of the remedies available to public employees. The next part turns to the interests invoked in protecting speech, beginning with the employees as “private citizens” and the doubtful role that speech on a matter of “public concern” plays in identifying those interests. Both terms need to be redefined and redeployed so that they can be used distinguish cases which are easy–because they involve no significant interest of the employer as an employer–from those which are relatively hard–because they do. The next part examines the employer’s interests and how they are defined and limited by the employee’s speech, returning to the exact nature of the speech in question in Pickering and Garcetti. This part also examines the transformation of the balancing test from Pickering into the categorical approach taken in Garcetti. Although the latter is more protective of employer interests than employee speech, it still allows courts to intervene to preserve the checking function of employee speech in cases in which it is truly necessary.
The last part offers some specific rules that could be used to clarify the analysis of public employee speech cases. The crucial distinction, as developed earlier, turns on the presence of legitimate interests of the employer. When they are absent, the employee should be treated as a “private citizen” under the usual rules of First Amendment jurisprudence. When they are present, the employee’s protection necessarily is more limited, as it is under whistleblower statutes that protect only complaints about specific forms of workplace misconduct. This result, while perhaps dismaying from a civil liberties perspective, reflects the difficulty of devising general standards for protecting speech at an acceptable cost to the equally general need for management discretion. Progress instead must be made incrementally, by identifying those areas in which the public employees right to speak and the public’s right to know can be protected at an acceptable cost.
Although I would probably go further in rectifying the damage to public employee free speech rights caused by Garcetti, I am pleased to see that George is seeking to bring some doctrinal coherence to this important area of public employment law.
Tuesday, February 12, 2008
The Writers Guild membership has just voted by a 92.5% margin to end their three-month strike. They still have to vote on whether to ratify the proposed contract, but all signs point to that happening. Get your TiVo plugged in again.
Also, the New York Times has an interesting story analyzing who won the strike.
Michael Selmi (GWU) has just posted on SSRN his article (forthcoming U. St. Thomas L. Rev.) The Work-Family Conflict: An Essay on Employers, Men, and Responsibility. Here's the abstract:
This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which could go a significant way to altering the dynamics of work-family issues, has been largely ignored. This essay first explores the rationales for focusing on employers, including what is now defined as the business case for work-life benefits. The paper then critiques the various excuses that are typically raised for why men do not take more responsibility for work-family balance issues, including that (1) they are penalized to a greater extent than woman, that (2) it is economically rational for the burden to fall on women and that (3) men's behavior has changed significantly, none of which is empirically supported in the literature. Finally, I suggest that it is important to have a more theoretically targeted policy focus that is premised on workplace equality rather than trying to support all choices for all women.
The Courier-Post (Camden, NJ) Online has this unusual gender discrimination story:
A state judge Friday dismissed a workplace discrimination lawsuit brought by a jail guard who says she is too well-endowed to wear the state-mandated protective vest.
The dismissal came after two years of litigation.
"Let's just say she's full-bodied," said attorney Allan E. Richardson, who filed the suit against the state Department of Corrections on behalf of Stacey Wilson-Smith, a 25-year employee at South Woods State Prison in Bridgeton.
The state Attorney General's Office asked that the complaint be dismissed because Wilson-Smith did not exhaust her administrative remedies through grievances.
Superior Court Judge Louis Meloni dismissed the suit.
Now, it is a little odd that it took two years to process an administrative dismissal of a case (even with a state claim in New Jersey), but I wonder what would have happened if this case had been decided on the merits? Chances are the female might have won, especially if there was evidence that the prison was not making male employees wear shoes that were too small.
Hat Tip: Jack Sargent
A group representing restaurant operators in San Francisco asked the Supreme Court on Friday to temporarily block the city government there from requiring employers to spend specific amounts on health care for their employees, arguing that a city ordinance is barred by federal worker benefit law. The application (07A654) was filed in Golden Gate Restaurant Association v. City and County of San Francisco, et al.; it was filed with Justice Anthony M. Kennedy as Circuit Justice for the Ninth Circuit. Justice Kennedy has the option of acting on the plea alone, or of referring it to his colleagues for action. (The application can be downloaded here.)
I would be surprised if Kennedy or the Court would act on this application. It seems much more likely that the Court will allow the normal appeal process to go its route.
I am actually surprised by this move because we last reported that the restaurant association would not be challenging the 9th Circuit's preliminary injunction decision which found that the San Francisco law survived ERISA preemption.
Tom Stapleford, Defining a “Living Wage” in America: Transformations in Union Wage Theories, 1870-1930
Philip B. Whyman, British Trade Unions, the 1975 Referendum and Its Legacy
Peter Alexander, Challenging Cheap-Labour Theory: Natal and Transvaal Coal Miners, c. 1890-1950
Kevin M. Schultz, The FEPC and the Legacy of the Labor-Based Civil Rights Movement of the 1940s
Labor History Symposium: Andreas Bieler, The Struggle for a Social Europe: Trade Unions and EMU in Times of Global Restructuring
1. Graham Taylor, The Limits and Possibilities of Trade Union Politics in Europe
2. Patrick Pasture, The Awakening of the Lame Duck? Trade Unions and the EMU
3. Janine Goetschy, The Difficult Road to Renewed Trade Union Action at the EU Level
4. Mark Rupert, Labor and Politics in a Multi-Scalar Globalizing Capitalism: Bieler and the New Neo-Gramscians
5. Andreas Bieler, Trade Unions and European Integration: Theoretical and Empirical Considerations
Please email Craig Phelan, at firstname.lastname@example.org, for more information about this Volume.
Monday, February 11, 2008
The Global Workplace: Expanding Intellectual Borders with International and Comparative Workplace Law
Susan Bisom-Rapp (Thomas Jefferson) writes to remind us that The Global Workplace: Expanding Intellectual Borders with International and Comparative Workplace Law is this week on Friday, February 15 and Saturday, February 16.
Susan co-organized this conference with Mike Zimmer (Seton Hall) and Bill Corbett (LSU). The live program is in San Diego at Thomas Jefferson School of Law and the event is available by videoconference at Seton Hall School of Law in Newark and the Paul M. Hebert Law Center (LSU) in Baton Rouge.
Well, boys and girls, it's getting to be that time of the year again. Larry Solum at the Legal Theory Blog is starting to collect entry-level hiring data and Dan Filler, at the new The Faculty Lounge blog, is seeking information about law professor laterals this year.
Please send Larry your entry level date here.
And you can send Dan lateral info here.
I will also be doing the annual labor and employment law professor faculty moves list and you are free to respond to this post in the comment section or to me by email.
Well, we're open! The island is open now in beta, which is a fancy way of saying we're not finished yet, but we've got enough here for you to look at. Please come check it out and let us know what you think!
And if you're around at 18:00 GMT today (Monday 11 Feb), come by for our first ever event, an informal discussion session on union busting with lead organisers Stewat Acuff of the American AFL-CIO and Paul Nowak of the UK TUC. Hope to see you there!