Workplace Prof Blog

MSPB Nominees

The White House has just announced two nominees for the Merit Systems Protection Board.  The nominees are Susuan Tsui Grundmann (nominated for Chairperson) and Anne Wagner (for Vice-Chair).  Here are the White House bios:

Susan Tsui Grundmann, Nominee for Chairman, Merit Systems Protection Board
Since 2002, Susan Tsui Grundmann has served as General Counsel to the National Federation of Federal Employees (NFFE), which represents 100,000 federal workers nationwide and is affiliated with the International Association of Machinist and Aerospace Workers (IAMAW).  At NFFE, she has successfully litigated cases in the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia.  In 2004, Ms. Grundmann represented NFFE and other labor unions in the statutory "meet and confer" process with officials from the Department of Homeland Security (DHS) and the Office of Personnel Management (OPM), which sought agreement on how to proceed with new DHS personnel regulations.  She currently represents NFFE and the United Department of Defense Workers Coalition, consisting of 36 labor unions, and has served on the Coalition’s litigation team in a coordinated response to the proposed personnel changes at Department of Defense (DoD).   In addition to DoD employees, Ms. Grundmann represents employees in the Forest Service, Department of Agriculture, Passport Services, Veterans Administration, General Services Administration, and some 25 additional federal agencies.  Since 2003, she has been a regular instructor on federal sector law at the William W. Winpisinger Education Center in Placid Harbor, Maryland.  Prior to joining NFFE, she served as General Counsel to the National Air Traffic Controllers Association (NATCA).  She earned her undergraduate degree at American University and her law degree at Georgetown University Law Center. 

Anne M. Wagner, Nominee for Member of the Merit Systems Protection Board, with the Designation of Vice Chair
Anne Wagner is currently the General Counsel of the Personnel Appeals Board of the U.S. Government Accountability Office.  As General Counsel, she has vigorously prosecuted prohibited personnel practices and other violations of federal employment law.  Prior to that, she served a five year statutory term as an adjudicating Member of the Personnel Appeals Board having been appointed to that position by the Comptroller General of the United States.  Ms. Wagner began her career as a staff attorney in the Office of the General Counsel for the General Services Administration, where she primarily handled labor and employment issues.  From there, she went on to become an Assistant General Counsel for the American Federation of Government Employees, AFL-CIO, the largest federal sector labor organization representing more than 600,000 federal and District government employees.  In her nearly twenty years with AFGE, she led precedent setting litigation and handled cases arising under the full array of laws governing federal employment.   Ms. Wagner graduated from the University of Notre Dame and received her J.D. from the George Washington University Law School.  

Hat Tip:  Patrick Kavanagh

-JH

Fraudulent QDROs

A group of Continental Airline pilots, afraid they'd lose their pension benefits when the airline was nosediving financially, cooked up a scheme to get a lump-sum distribution:  divorce the wife (but don't tell anyone, including the kids, and continue to live together), have her obtain a QDRO order from the domestic relations court, use that order to get a lump-sum distribution from Continental's pension fund, then remarry.  All was fine until Continental found out about it and sued the pilots.  The Houston Chronicle has the story; Jerry Kalish at Retirement Plan Blog provides the benefits angle.

rb

DOL Seeks Nominations for 2010 ERISA Advisory Council

The Department of Labor issued this news release today, asking for nominations for the 2010 ERISA Advisory Council.

The U.S. Department of Labor is soliciting nominations to fill five three-year vacancies on the Advisory Council on Employee Welfare and Pension Benefit Plans, known as the ERISA Advisory Council. The deadline for receipt of nominations is Sept. 15, 2009.

The Employee Retirement Income Security Act (ERISA) established the bipartisan council, which consists of 15 members appointed by the secretary of labor to represent specified groups and fields that are involved in employee benefits. The council meets four times a year and makes recommendations to the secretary regarding functions carried out under ERISA.

Nominations are being accepted for one vacancy each to represent the fields of employee organizations, employers, actuarial counseling, investment counseling and the general public.

Interested persons or organizations may nominate qualified persons for membership. Recommendations must be submitted by letter, resolution or petition and signed by the person or, in the case of a nomination by an organization, by an official representative of the group making the recommendation.

Nominations should briefly describe the candidate's qualifications and the group or field for which the candidate is being nominated, including contact information and indicating the candidate's acceptance of the appointment if offered.

Nominations should be submitted to Larry Good, Executive Secretary, ERISA Advisory Council, Room N-5623, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210.

MM

The Advent of the Four Day Work Week?

At least in Utah (via Derek Thompson at The Atlantic):

Forget everybody working for the weekend. In Utah all government employees have shifted to a four-day workweek, and the state is calling it a win-win-win for its budget, workers and clean air. Utah has saved $1.8 million in electrical bills in the last year, the air has been spared an estimated 6,000 metric tons of carbon dioxide, and workers are thrilled.  Eighty-two percent of them say they prefer the new arrangement, which still enforces the 40-hour week by requiring 10 or more hours a day Monday - Friday. Is it time to ask your boss if you can take off Friday .... forever?

Not sure this will start a craze, but the fewer day workweek clearly has some benefits, as illustrated above.  Moreover, Thompson points out:

There's another way to realize those kind of savings: Asking workers to telecommute. As I've written before, the benefits of telecommuting are pretty diverse. From the employer side, it can save office space, utilities and overhead for employee services. From the employee side, it allows parents to spend more time with their family and cut down on increasingly expensive travel given the rising price of gas and public transportation. And of course, fewer cars on the road means less traffic, which means quicker travels (and less gas) for other Friday commuters.  

But, on the other hand, any increase in telecommuting will lead to less face time in the office. Will that have deletrious effects on the culture of the workplace and make employees feel that they are not part of a team, part of something more than just what they contribute to the enterprise?

Am I overstating my concerns here?

PS

Befort on Bringing Workplace Law and Public Policy into Focus

Congratulations to Steve Befort (Minnesota) and John Budd (Minnesota Business) who has just published their new book: Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (Stanford University Press, 2009).

Here's a synopsis:

The global financial crisis and recession have placed great strains on the free market ideology that emphasizes economic objectives and unregulated markets. And now, the balance of economic and non-economic goals is under the microscope in every sector of the economy. It is time to re-think the objectives of the employment relationship and the underlying assumptions of how that relationship operates.

"Invisible Hands, Invisible Objectives" develops a fresh, holistic framework to fundamentally reexamine U.S. workplace regulation. The text provides a much needed rubric for workplace law and public policy that embraces equity and voice for employees, as well as economic efficiency, and which reveals significant deficiencies in our current practices. In response, the authors blend their expertise to propose a comprehensive set of reforms, tackling such issues as regulatory enforcement, portable employee benefits, training programs, living wages, workplace safety and health, work-family balance, security and social safety nets, nondiscrimination, good cause dismissal, balanced income distributions, free speech protections for employees, individual and collective workplace decision-making, and labor unions. The book, which also includes descriptions of the evolution and current state of U.S. workplace regulation, is suitable for classroom use with students in law, human resources, economics, and public policy.

Steve tells us that the table of contents and additional information about the book is available here.

PS

The UNITE HERE! Split

I've been bad about posting on the split of UNITE HERE!, but now that employers have begun to try to use the split in cases, I've got no more excuses.  The merged unions have been going through a nasty separation much of the year; I won't go through the details, but Labor Notes has been doing a good job reporting on it (check out this recent article, which links to previous pieces).

As you would expect, employers have begun citing the split as a reason to conduct a representational election to determine the identity of employees' bargaining representative.  Thus far (at least to my knowledge), regional directors have been rejecting this argument, as happened recently in San Francisco (BNA link, subscription required).  On Tuesday, the NLRB stepped in by affirming the regional directors in the San Francisco case and other case in Chicago (another BNA link, which describes the two-sentence unpublished order finding "no substantial issues warranting review"). 

Although challenges are likely to continue, I haven't seen anything that looks like the split has actually put the question of who is representing employees into doubt.  That could change, of course--especially in individual cases--but we're likely seeing more of an attempt by employers to tweak the unions than a real attempt to get an election.

Hat Tip:  Dennis Walsh

-JH

Rejecting Pay Inequality

Sharon Rabin-Margalioth (Radzyner L.S., Israel) has just posted on SSRN her article The Market Defense.  Here's an excerpt from her abstract:

Too often women encounter the argument that pay disparity is the outcome of market forces and not sex discrimination. Salary differentials are attributed to individual pay demands, bargaining effectiveness, external counteroffers and/or prior salaries. These are just a few examples of market justifications employers raise to explain why similar workers performing the same job are compensated differently.

This paper argues that, in most cases, market justifications for pay disparity in equal pay for equal work litigation should be rejected. The paper then takes on the more ambitious project of proposing an alternative model of gender discrimination, which is not restricted to causation . . . .  [This alternative model] would restrict the employer’s ability to defend differential wages for equal work to cases where he can present evidence that individual ability or productivity considerations support the disputed pay disparity.

rb

Updates on 4th Annual Colloquium

Tim Glynn, one of the organizers of this year's colloquium, writes us with an update--including a panel on the Restatement:

Updates on Fourth Annual Colloquium on Current Scholarship in Labor & Employment Law, September 25-26, 2009, Seton Hall University School of Law

 

1) We are pleased to announce that on Saturday, September 26, there will be a panel discussion on the most recent draft of Chapter 7 (Employee Privacy) of the Restatement of Employment Law.  Matthew Bodie (St. Louis), the ALI Reporter for this Chapter, will present the draft, and Matthew Finkin (Illinois), L. Camille Hebert (Ohio State), and Steven Willborn (Nebraska) will provide commentary.  Timothy Glynn (Seton Hall) will serve as moderator.  A revised draft of this Chapter will be made available prior to the event. 

 

2) Hotel information has now been posted on the Colloquium website.  Please note that reservations for conference-rate rooms at the Newark Hilton Hotel must be made no later than September 4, 2009.

 

3) You may register for the Colloquium and submit presentation proposals on the website.  Please note that proposals (title and abstract) must be submitted no later than August 15, 2009.

-JH

AALS Section on Employment Discrimination Seeks Junior Law Prof for 2010 Annual Meeting Panel

Scott Moss (Colorado) writes us to tell us about the upcoming 2010 AALS Section on Employment Discrimination program at the 2010 AALS Annual Meeting in New Orleans:

The panel focuses on the flurry of recent and impending federal legislation on employee rights; we’ve booked experts on various relevant subjects, but we’re looking for a junior professor to volunteer (a) to research the status of all pending federal employment discrimination legislation as of December 2009, (b) to produce a handout for distribution at the early January 2010 AALS panel, and (c) to speak on the subject of impending legislation.  So we’re looking for someone willing to get into the trenches and do some research to help our panel be informative and current; it’s a great opportunity for someone junior to get a speaking role, one that’ll be on a panel with some interesting senior members of the field. 

Anyone interested should send Scott Moss (scott.moss@colorado.edu) and Tristin Green (tristin.green@shu.edu) an email by August 10 with a resume and, optionally, a brief (1 sentence or 1 paragraph) explanation of why you would be a good choice for this role.

Here is more description about the panel:

Reviving Employee Rights? Recent and Upcoming Employment Discrimination Legislation

This panel will discuss the recent flurry of major employment discrimination legislation, some recently passed and some still pending.  Among the numerous bills to be discussed may be the following: (1) the 2008 expansion of Americans with Disabilities Act coverage; (2) the 2009 Lily Ledbetter Act liberalizing the deadlines to file pay discrimination claims; (3) the Employment Non-Discrimination Act (ENDA), which would ban sexual orientation discrimination; (4) the Arbitration Fairness Act, which would bar mandatory arbitration of employment discrimination and other statutory claims; and (5) various bills that would broaden certain employee rights statutes’ damages (such as the proposed Paycheck Fairness Act expanding pay discrimination damages) and coverage (such as expanding Family Medical Leave Act coverage for smaller employers).

PS

Obama to Nominate Michaels as Next Head of OSHA

I am thrilled with the announcement that President Obama intends to nominate David Michaels to be the next head of OSHA.  Not only is OSHA in dire straits as far as its enforcement program, but also in its ability to promulgate new safety and health standards anywhere near close to what the new global workplace requires. I hope Mr. Michaels, if confirmed, will get right to work on rejuvenating this important area of labor and employment law.

As far as Michaels' background, I believe he would come to the job with the requisite knowledge and ability to get these issues addressed.  He is currenty the interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C., and he serves as director of the university's Project on Scientific Knowledge and Public Policy.

The word on the street is that he is likely to work for employee rights and management and industry people are alerady grumbling.

PS

District Court Requires Formal Inquiry Before ERISA Section 510 Retaliation Claim

The road continues to be an uphill one for ERISA plaintiffs.  Consider the recent Section 510 retaliation decision by the Eastern District of Pennsylvania in Edwards v. A.H. Cornell & Sons, Inc., 09-1184 (E.D. Pa. July 23, 2009):

Plaintiff bases her section 510 claim on the allegation that Defendants terminated her for object[ing] to and/or complain[ing] to Defendants’ management or owners about Defendants’ alleged ERISA violations. She asserts that her actions were protected activity under ERISA and thus her termination violated the retaliation provision in ERISA, section 510 . . . .

The Third Circuit has not yet addressed the scope of ERISA’s antiretaliation provision and, more specicially, whether internal workplace complaints are protected activity under section 510.  Only four circuits--the Ninth, the Fifth, the Fourth, and the Second--have considered this issue, [and they have split on the outcome] . . . .

[W]e agree that the proper inquiry is whether the Plaintiff’s alleged objections and complaints to management in the present case were given as part of an inquiry . . . . After reviewing the allegations in the Amended Complaint, we find that they were not.

I disagree with the outcome of this case, especially given the procedural posture of a motion to dismiss. ERISA's primary purpose is to protect the employee benefits of employees.  That protection includes protecting employees when they complain about how their benefits are being administered.  I agree with the Ninth Circuit's take on the issue of internal complaints under ERISA:

The language "has given information or has testified in any inquiry or proceeding relating to [ERISA]" could be "fairly construed" to include "[t]he normal first step" of "[present[ing] the problem to the responsible managers of the ERISA plan." Because discharging a person for raising the problem in the first place would "discourage[] the whistle blower before the whistle is blown[.]"

Consequently, the Ninth Circuit went on to hold that making informal, workplace complaints to managers regarding potential ERISA violations is protected activity under section 510.  I think, consistent with the purposes of ERISA to protect employee benefits, the employee should have been given the chance to show that she was attempting to bring potential ERISA violations to the attention of her bosses.

PS

PBGC's Millard Under Investigation for Shady Investment Practices

A troubling story today from the New York Times regarding the relationship between the head of the Pension Benefit Guaranty Corporation (PBGC), the federal agency that insures defined benefit pension plans, and Wall Street.

From the New York Times:

As a New York money manager and investment banker at four Wall Street firms, Charles E. F. Millard never reached superstar status. But he was treated like one when he arrived in Washington in May 2007, to run the Pension Benefit Guaranty Corporation, the federal agency that oversees $50 billion in retirement funds.

BlackRock, one of the world’s largest money-management firms, assigned a high school classmate of Mr. Millard’s to stay in close contact with him, and it made sure to place him next to its legendary founder, Laurence D. Fink, at a charity dinner at Chelsea Piers. A top executive at Goldman Sachs frequently called and sent e-mail messages, inviting Mr. Millard out to the Mandarin Oriental and the Ritz-Carlton in Washington, even helping him hunt for his next Wall Street job.

Both firms were hoping to win contracts to manage a chunk of that $50 billion. The extensive wooing paid off when a selection committee of three, including Mr. Millard, picked BlackRock and Goldman from among 16 bidders to manage nearly $1.6 billion and to advise the agency, which Mr. Millard ran until January.

But on July 20, the agency permanently revoked the contracts with BlackRock, Goldman and JPMorgan Chase, the third winner, nullifying the process. The decision was based on questions surrounding Mr. Millard’s actions during the formal bidding process. His actions have also drawn the scrutiny of Congressional investigators and the agency’s inspector general.

I know, I know. This is Washington D.C. and unethical, if not illegal, practices like this should be expected. But I can't help believing that a situation like this (if true) could have been avoided by simply putting into place some balance and checks on how the PGBC retirement funds are invested. 

Three proposals: (1) Do not make the head of the PGBC an investment manager. The head of the PGBC should be a person well familiar with employee benefit plans and the law surrounding the management and operation of such funds. (2) Do not place the head of the PGBC on a committee that selects the investment firms.  Conflicts of interest need to be stomped out from the get go. (3) Obviously, an investment manager-type will be needed for advice on who to invest the money with.  However, such a person should completely disclose all personal and professional relationships and should be recused from dealing with those firms.

Is that really so hard?

PS

Vandervelde's Wiki Teaching Techniques Featured

Kudos to Lea Vandervelde whose teaching techniques involving wikis in her employment law class were featured in the ABA Journal. Here's a taste:

University of Iowa law professor Lea VanderVelde didn’t want to use a textbook in last spring’s employment law class because the material can quickly become dated. Her solution: Let the students research the law themselves and post it on a Wiki.

VanderVelde told the Daily Iowan that the Wiki helped illustrate that each state takes its own approach to employment law. Each student was responsible for researching the law of two states and posting it on the Wiki.

“Several people expressed the view that it was the most fun class to come to,” VanderVelde said. “It wasn’t just reading the textbook, being called upon, or having the professor lecture to them.”

This appears to be an interesting approach to teaching the common law subjects, like wrongful discharge, covered in employment law.  But does it work as effectively for those who teach statutory topics like FLSA, OSHA, ERISA, unemployment compensation, and workers' compensation?  My guess is that statutory material doesn't become as quickly dated. 

This, of course, would be an ideal time for all you employment law casebook people to chime in and tell us why we all shouldn't start using the Wiki method.  To be fair, even Vandervelde concedes that the wiki method would not work in all classes.

PS

EFCA Delays

BNA's Daily Labor Report (subscription required) is reporting that the Senate may not vote on EFCA until well after the August recess.  According to Sen . Harkin--EFCA's lead sponsor in the Senate--the bill's prospects may improve later in the fall, especially if the health of Sens. Byrd and Kennedy improves.  Harkin notes that negotiators are 80%-90% towards reaching an agreement that would pass, although he wouldn't give any specifics.

Looks like "stay tuned" will be the mantra for a while longer.

-JH

Early Opposition to Becker

It's no surprise that of three nominees to the NLRB, Craig Becker is the one receiving the most opposition.  As General Counsel to the SEIU, both his own positions (he was also a former law professor) as well as the union as a whole are targets.  One early salvo is from the Chamber of Commerce blog, which has used selected quotes to predict a Becker-aided assault on employers by the Obama NLRB (including raising the extraordinarily unlikely possibility that a new Board will seek to implement card-check recognition--against current Supreme Court precedent--on its own).

Expect to see more of the same.  My guess (and it's really just a guess) is that Becker's nomination is not seriously at risk, especially given that the three will probably be a package deal.  Instead, employer-side groups are likely to use the confirmation process as a PR tool, just like unions did during the Bush years.

-JH

Shiu Named OFCCP Director

Patricia A. Shiu, currently vice president for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC), has been named Director of the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the branch of the Department of Labor responsible for enforcing Executive Order 11246 and other laws which prohibit discrimination and require affirmative action by businesses contracting with the federal government.  Here's a bio of Shiu, courtesy of NELA’s Twentieth Annual Convention last month in Rancho Mirage, California:

Patricia A. Shiu is Vice President of Programs at the Employment Law Center, a project of the Legal Aid Society of San Francisco.  Ms. Shiu joined the Employment Law Center in 1983 where she focuses primarily on employment discrimination, including sex and race-based discrimination.  She also represents workers in family and medical leave cases.  Ms. Shiu is the Director of the Society’s Work and Family Project and advocated for the passage of California’s Family Rights Act and its regulations.  Ms. Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education in 1993 by Secretary Richard Riley.  She is a former member of the Executive Board of the National Employment Lawyers Association and served as one of its Vice Presidents. Ms. Shiu serves on the Board of Directors of The Employee Rights Advocacy Institute For Law & Policy, NELA’s related charitable and educational public interest organization.  She is a graduate of the University of San Francisco School of Law.

Hat tip: Rebecca Hamburg (NELA).

rb

Confusing the Terms of the Health Care Debate

Martin Feldstein, a brilliant conservative economist, has his facts wrong on the health care debate in an op-ed he penned today in the Washington Post.

Nate Silver of FiveThirtyEight concisely explains Feldstein's error:

Take a look at this:

Obama has said that he would favor a British-style "single payer" system in which the government owns the hospitals and the doctors are salaried but that he recognizes that such a shift would be too disruptive to the health-care industry. The Obama plan to have a government insurance provider that can undercut the premiums charged by private insurers would undoubtedly speed the arrival of such a single-payer plan.

Feldstein is simply mistaken here. "Single-payer" has to do with who pays for health care (in the case of single-payer, the federal government does). It has absolutely nothing to do with who provides health care. It's the difference between the Canadian system, in which private doctors and hospitals are paid by the Canadian government (and indirectly, Canadian taxpayers) to provide health care to its citizenry, and the British system, in which the providers themselves -- doctors, nurses, hospital administrators -- are actually in the employ of Her Majesty's Government. For that matter, it's the difference between Medicare -- a single-payer system for American seniors -- and the British system. The Canadian system is nationalized health insurance. The British system is nationalized health care -- or if you prefer, socialized medicine.

Obama has never expressed or implied any admiration for the British system of socalized medicine. Not that there aren't admirable elements of it -- but I doubt that you'd find even very many self-identified liberals who would suggest that it's the right system for America. Obama, rather, has expressed admiration for a government-run monopoly on insurance -- single-payer -- as do about half of Americans in opinion polls.

Got it? Get it? Good.

PS

More About the Recent Minimum Wage Increase

Paula Brantner of Workplace Fairness and the excellent Today's Workplace Blog has some interesting new details concerning the recent rise of the federal minimum wage to $7.25 on July 24, 2009:

About 10 million workers - 10.7% of all workers -- will receive a $2000 annual increase as a result of this increase. Many believe that the minimum wage increase is an important step towards helping families through these difficult economic times. "Working families who make the minimum wage have been barely scraping by," said Paula Brantner, executive director of Workplace Fairness. "While workers who make the minimum wage will still struggle financially -- even with this increase -- this will put more money in the pockets of working people and help stimulate our still-sluggish economy."

Employers in the following 30 states will now have to pay their workers $7.25 an hour as a result of the change in the law:

Alabama, Alaska, Arkansas, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. 

Brantner points out that twenty states already have state minimum wages higher than, or the same as, the federal level. More insight on the federal minimum wage increase can be found at Federal Minimum Wage Increase, by Hannah Goitein, at Today's Workplace, the Workplace Fairness blog.

PS

Bratman Commentary on Sotomayor "Wise Latina Remark"

Ben Bratman (Pitt) has written a thought-provoking, and I believe insightful, article on the bruhaha over Judge Sotomayor's "Wise Latina" remark on Findlaw entitled: A Defense of Sotomayor's "Wise Latina" Remark - with No Rewording Required.

Here's a taste:

Thinking about Sotomayor's remark from a legal perspective, however, I am not troubled by it. (Nor do I find it to be merely a "rhetorical flourish," as Judge Sotomayor herself characterized it at the hearings.) Rather, I am intrigued by it – as I will explain.

I teach a law school course on a subject—employment discrimination—in which gender and ethnicity matter, and in which the unique perspectives of women and of Latinas (as well as of African Americans, Asian Americans, etc.) matter. It is a subject in which I encounter and teach federal appeals court decisions by white judges and male judges who are doing their best to adopt the perspective of an employee who is a woman and/or a member of an ethnic minority.

These cases—concerning alleged harassment in the workplace because of sex, race, or national origin—illustrate the relevance and importance of Sotomayor's remark. They also counsel against superficial rejection of that remark on the grounds that personal experiences categorically can never play a role in judging.

I agree wholeheartedly with Ben on this point, but what I, and others, are dismayed about is that Sotomayor did not stick to her guns on her judicial philosophy.  Instead, she merely threw out empty platitudes to attempt to win conservative Republican votes that she had little chance of winning.

I hope that President Obama's next nominee to the Court learns their lesson from this little farce and just says what he or she really believes about judicial philosophy and not attempt to explain away their previous statements.  After all, the conservative view of the proper role of a judge is not the only legitimate one and definitely not sacrosanct.

PS

Royal on Why the OSH Act Does Not Preempt State Guns-at-Work Laws

Dayna Royal (Cumberland) has posted on SSRN her forthcoming article in the Florida Law Review: Take Your Gun to Work and Leave it in the Parking Lot: Why the OSH Act Does Not Preempt State Guns-at-Work Laws.

Here's the abstract:

As the gun-control debate rages on, many states have begun enacting laws to protect individuals’ rights to store their guns in their vehicles while at work. These 'guns-at-work' laws limit employers’ ability to prevent employees from storing their guns in their vehicles on employer property. At least two courts have considered the legitimacy of these laws. One found the laws preempted by the Occupational Safety and Health Act of 1970 ('OSH Act'), which was enacted to promote worker safety. The Northern District of Oklahoma held the laws create an obstacle to and conflict with the Act and cannot stand. The Northern District of Florida disagreed, finding an express provision in the Act permits states to regulate in this area. In the face of numerous states enacting these laws, this article explores whether they are preempted by the Act and concludes they are not. Part II provides a preemption overview. Part III analyzes the Act including the specific relevant provisions. Part IV surveys the various guns-at-work laws and reveals noteworthy patterns. Part V argues that these laws do not conflict with the Act. Finally, Part VI contends that preemption requires promulgation of standards in accordance with the Act, and absent such standards, states remain free to regulate in this arena. This dispute over workers’ safety and gun-owners’ rights must be resolved by the executive branch in accordance with the OSH Act, rather than by the courts through the doctrine of preemption.

The article's thesis seems right to me and let me also say that I hope that standards are promulgated under OSHA which prohibit the possession of guns anywhere near the workplace.  I know there are many out there they say that workplace massacre could be halted if employees had access to their guns.  Although that may be true in limited circumstances, I believe it would be more likely that guns would be used inappropriately in workplace disputes much more often.

PS