Saturday, March 14, 2009
Seton Hall will host a debate, The Employee Free Choice Act: Will America Prosper or Suffer?, on Wednesday, March 18, 2009 from 4:00 to 6:00 pm.
Moderated by Seton Hall Law Professor Timothy Glynn (photo at left), the panel to date includes Martin F. Payson, Esq. and Jeffrey J. Corradino, Esq., partners with Jackson Lewis who represent employers; and Bennet D. Zurofsky, Esq., a solo practitioner in Newark who represent unions and employees.
This event is co-sponsored by several Seton Hall Law student organizations: the Employment Law Society, the American Constitution Society, the Federalist Society, Seton Hall Law Democrats, and Seton Hall Law Republicans.
The debate is open to the public but advance reservations are requested.
We've been reporting on the D.C. Circuit's Laurel Baye case, in which an employer has challenged the legality of two-member NLRB decisions. The First Circuit, however, has beaten the D.C. Circuit to the punch in Northeastern Land Servs. v. NLRB (use opinion search--case number is 08-1878). The court concluded that the two-member decisions were legal; here's the most pertinent paragraph of the decision:
The Board's delegation of its institutional power to a panel that ultimately consisted of a two-member quorum because of a vacancy was lawful under the plain text of section 3(b). First, section 3(b) allowed the Board to delegate all of its powers to a three-member group. Second, the statute states that "[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board." The vacancy, which left the two-member quorum remaining, may not, under the terms of section 3(b), impair the right of the two-member quorum to exercise all powers of the Board. This is consistent with the conclusion of the Office of Legal Counsel of the U.S. Department of Justice which has concluded, "In our view, if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained." Quorum Requirements, Memorandum from M. Edward Whelan III, Principal Deputy Assistant Attorney Gen., Office of Legal Counsel, (Mar. 4, 2003), available at 2003 WL 24166831. Moreover, "[a]ny other general rule would impose an undue burden on the administrative process." R.R. Yardmasters of Am. v. Harris, 721F.2d 1332, 1343 (D.C. Cir. 1983).
As I've stated before, I think there are reasonable arguments on both sides, but I lean against the Board having authority to do this. Indeed, a 1982 Ninth Circuit case that the First Circuit relies on illustrates the problem. That case involved a three-member Board panel hearing a case, but one member resigning the day of the decision. That is exactly the type of situation that Section 3(b) was intended to cover--not what happened here, where a indefinite two-member Board is hearing case as an original matter.
Finally, I'm not surprised to hear, and sympathetic to, the First Circuit's concern about burden's on the NLRB's operation. This argument, although not the strongest legally, is a very compelling issue given the number of decisions made vulnerable by this challenge.
Hat Tip: too many people to credit--thanks to all.
Lawrence Rosenthal, coaching Team Chase, tells me the semifinals rounds are Southwestern v. Chase and John Marshall (Chicago) v. Loyola (Chicago). Best of luck to all competitors! The final round will be webcast on Sunday.
UPDATE: It's Chase v. Loyola (Chicago) tomorrow on the web at 2pm.
- Orly Lobel & On Amir, Stumble, Predict, Nudge: How Behavioral Economics Informs Law and Policy (244).
- Suja A. Thomas, The Fallacy of Dispositive Procedure (112).
- Isaac B. Rosenberg, Height Discrimination in Employment (102).
- Christian E. Weller (left) & Jeffrey B. Wenger (right), Prudent Investors: The Asset Allocation of Public Pension Plans (98).
- Deborah Widiss, Shadow Precedents and the Separation of Powers: Statutory Interpretation of Congressional Overrides (98).
- Jeffrey M. Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law (95).
- Elizabeth M. Glazer & Zachary A. Kramer, Trans Fat (94).
- Nicholas Barr & Peter A. Diamond, Reforming Pensions (93).
- M. Todd Henderson, The Nanny Corporation and the Market for Paternalism (88).
- Matteo Tonello, The Role of the Board in Turbulent Times: Overseeing Risk Management and Executive Compensation (85).
Friday, March 13, 2009
Michael Fox (Ogletree) over at Jottings by an Employment Lawyer has a nice post today on the current mudslinging over the EFCA. Here's an excerpt:
I think the opponents of EFCA are making a mistake focusing so much on card check. How a union is formed is important, and my belief is that the secret ballot is far superior to card check. However, in my view the most radical change contained in EFCA is binding arbitration for the first contract. The current national policy, which as mentioned above, is that collective bargaining is the preferred way of organizing the workplace, also is founded on the principle that an employer while required to bargain in good faith, was never forced to concede or agree to any point. To "force" concessions, unions have the economic power to withhold their labor, strike. If EFCA is passed as introduced, for first contracts this would no longer be true. If agreement is not reached, a solution will be imposed, which will require an employer (and employees) to be bound for two years. It represents a total reversal of the current policy, and so far is getting relatively little attention. If that continues, what will happen is that a "compromise" will be reached that retains secret ballot elections (albeit it with major changes designed to make it easier for unions to organize) but keeping binding arbitration for first contract. That would mean that one of the underlying principles of our current system will have been changed, with little discussion or my guess, is little understanding that it is even happening.
I think there's a good chance that Michael's prediction is spot-on.
University of Florida Journal of Law and Public Policy
Volume 19, Number 3, December 2008
- Katherine V.W. Stone, Policing the Workplace—Home Space Boundary: New Issues for Employment Regulation, p. vii.
- William A. Herbert, Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching, p. 379.
- Joseph O. Oluwole, Public Employment-Free Speech Jurisprudence: A New Constitutional Test for Disciplined Whistleblowers, p. 421.
- Robert J. Landry, III & Benjamin Hardy, Mandatory Pre-Employment Arbitration Agreements: The Scattering, Smothering and Covering of Employee Rights, p. 479.
Although we often post notable faculty moves as we hear about them, we've also like to publish a full list of all labor and employment faculty moves (here's last year's). So, please let me know of any moves--whether new faculty, lateral moves, visits, promotion and tenure, sabbaticals, retirements, administrative appointments, or passings. My preferred means is via a comment to this post (which I'll incorporate in a new post listing all moves), but you can also email me.
Bill Gould of Stanford Law School will be hosting the conference "International Labor Standards, Rights and Beyond" on August 14-15. According to the conference release:
The conference will focus on the development of international labor standards and rights, beginning with a keynote address by Judge Rosemary Barkett of the United States Court of Appeals for the Eleventh Circuit. The topics speakers will address include country-specific labor programs linking trade and labor rights, and the role of the World Trade Organization and the International Labor Organization. Other featured speakers include Honorable Donald Johnston, former Secretary-General of the Organisation for Economic Co-operation and Development (OECD), Professor Harry Arthurs of Osgoode Hall Law School, Professor Robert Flanagan of Stanford Graduate School of Business, Dan Henkle, Senior Vice President of Social Responsibility at Gap, Inc., Jiang Junlu of King & Wood, LLP, and Professor Risa Lieberwitz of Cornell University, among others.
You can register at the conference website.
Thursday, March 12, 2009
Helen Norton has put on SSRN her article, which will appear in Duke Law Journal, "Constraining Public Employee Speech: Government's Control of its Workers' Speech to Protect its Own Expression." The article looks at public employees' free speech claims from a government speech perspective--an increasingly important vantage point. The abstract:
This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech.
More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.
To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech -- can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.
Hat Tip: Paul Secunda
Christopher Emden (William & Mary) has just posted on SSRN his Note, "Subverting Rule 56? McDonnell Douglas, White v. Baxter Healthcare Corp., and the Mess of Summary Judgment in Mixed-Motive Cases." In it, he addresses the perplexing issue of how to analyze summary judgment motions in mixed-motive cases and takes what will seem to many readers a bit of a contrarian view--that the Sixth Circuit's standard in Baxter is too favorable to plaintiffs. The abstract:
Summary judgment is often the make-or-break setting for a plaintiff alleging illegal employment discrimination. For most plaintiffs, the present law of summary judgment in employment discrimination will end their case. Plaintiffs are losing most of the cases they file because they are frequently unable to survive an employer's motion for summary judgment. That result may be about to change if the Sixth Circuit's ruling in White v. Baxter Healthcare Corp. gains traction. While McDonnell Douglas creates a heightened burden for plaintiffs to meet at summary judgment, Baxter effectively removes any burden on a plaintiff necessary to survive an employer's summary judgment motion. This paper argues that both the use of McDonnell Douglas at summary judgment, and the new Baxter standard, effectively circumvent Rule 56.
Check it out!
Nebraska S. Ct. Upholds Vacatur of Arbitration Award Reinstating State Trooper Who Was a Klan Member
The case is State v. Henderson, and it would make a great exam question, raising labor law and First Amendment issues. Robert Henderson, a veteran Nebraska state trooper joined the Knights Party, an organization affiliated with the Ku Klux Klan, in 2004. Internal Affairs discovered this, and Henderson was fired. His union filed a grievance on his behalf and took the matter to arbitration. The arbitrator ordered him reinstated, finding that his constitutional rights were violated and that the state lacked just cause for firing him. The state petitioned to vacate the award, and a Nebraska trial court agreed. The Nebraska Supreme Court just upheld that order, adopting the public policy exception to enforcememnt of arbitral awards and finding that the award violated public policy.
The Nebraska Supreme Court avoided deciding the constitutional issue (so the officer might be entitled to damages), and instead only analyzed whether reinstating the officer would violate public policy. The court described the long and violent history of the Klan and noted that the Knights Party and other Klan groups purposely chose to affiliate themselves with that history, even if their membership materials state that the movement is nonviolent. The court also analyzed the public policy of the State of Nebraska, noting that since 1867 the state's motto expressed on the state seal has been "Equality Before the Law." The court found a dominant and clear public policy in racial equality. A particularly forceful expression of that public policy as it relates to law enforcement is the state's racial profiling act, and the court quoted at length from the testimony in favor of that legislation:
“we must admit that there is a perception, and I use the word perception loosely because actually, it’s more than a perception, that some officers are engaging in racial profiling, and this has created resentment and distrust of the police, particularly in communities of color.” . . . As the introducing senator explained,
Nebraska has always been a diverse state with an immigrant background. Our heritage and disposition has been that of being inclusive and accepting [in] nature. This is one of the greatest traits of our state. That’s why I believe it’s important to present an open, fair law enforcement image for our state. . . . The problem that we have, regardless of whether there’s racial profiling existing in Nebraska or not, [is that] we have the perception of unfairness. Because of that perception, many people who are stopped for a legitimate reason may think that they’re being stopped [or] targeted due to their race. We need to collect data to determine whether the racial profiling does exist in our state, and to remove the perception of unfairness that we have.
Noting that efficient law enforcement requires mutual respect and trust and that the entire justice system depends on the the public perception of police, the court held that reinstating an officer who had joined a white supremacist organization would severely undermine public perception in the state's commitment to enforce the law equally without regard to race.
We also note that Henderson’s membership in the Knights Party is consistent with a long-established Ku Klux Klan strategy of recruiting and publicizing the membership of law enforcement officers. The Ku Klux Klan has historically enrolled or enlisted the support of law enforcement officers, to stave off indictment when victims of violence, “having recognized law enforcement officials among their assailants, understandably believed prosecution futile.” Consistent with that strategy, Henderson’s continued service as a sworn employee of the State Patrol would directly advance the interests of the Ku Klux Klan by fostering the perception that some citizens of Nebraska do not enjoy the same protection by law enforcement as others.
Thus, the court upheld the vacatur. One justice dissented on the grounds that the arbitrator essentially made a factual finding that the state had not shown any actual disruption in law enforcement caused by Henderson's belief in the hearing before the arbitrator, and had not provided enough credible evidence of future disruption in working relationships. That fact finding, that Henderson's membership in the Knights party had not and would not interfere with his job, foreclosed the court from finding that his reinstatement would frustrate law enforcement efforts in the view of the dissenting justice.
I have to agree with the majority on this one and further suggest that Henderson's discharge would not violate the First Amendment. First, under current law, where public safety is concerned, it is very likely that the state would not have to show any actual disruption, but a likelihood of future disruption would be enough. And it is likely there would be future disruption. Internal affairs was informed by someone about Henderson's activities, which suggests that it was only a matter of time before others found out about them. Once his affiliation became public, it would seem inevitable that his working relationships would become strained and that members of the public would view the department negatively. This seems one of those situations in which the interests of the state would outwiegh the interests of the individual. In any event, this is an important decision in the arbitral award/public policy and public employee speech/association contexts.
David Yamada's Minding the Workplace Blog has had a couple of interesting posts recently (well, he's had a lot more than that, but I'm only going to mention two of them). In one, he notes that the Massachusetts public employee union has approved a collective-bargaining agreement that includes protections against bullying and abusive supervision. Perhaps a sign of things to come.
In his second post, David discussing bullying in academe. The post does a nice job of exploring the problems and why they may exist (e.g., highly subjective personnel decisions) and giving other sources on the topic. My favorite of his description of academic bullying: "Call it Dilbert in Tweed."
The U.S. Equal Employment Opportunity Commission (EEOC) yesterday announced that workplace discrimination charge filings with the federal agency nationwide soared to an unprecedented level of 95,402 during Fiscal Year 2008, which ended Sept. 30. This is a 15% increase from the previous fiscal year. The FY 2008 data also show that the EEOC filed 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private sector charges. Here are the FY 2008 enforcement and litigation statistics, which include trend data.
According to the FY 2008 data, all major categories of charge filings in the private sector (which includes charges filed against state and local governments) increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges.
An article in yesterday's Wall Street Journal contains a nice bar chart of the increased filings by category, and a focused discussion on why age claims may be up so dramatically.
Hat tip: Randy Enochs via Paul Secunda.
Hofstra’s Labor and Employment Law Journal will present a panel-debate on The Employee Free Choice Act - The Right or Wrong Choice for America? on Wednesday, April 1, 2009 at 6 p.m. The program will take place in the Sidney R. Siben and Walter Siben Moot Courtroom (Room 308) and is open to the public.
Eric J. Schmertz, the former Dean of Hofstra Law School, will moderate the panel-debate during which management and labor representatives will address the most contested provisions of EFCA. Stewart Acuff, Organizing Director of the AFL-CIO and Amy Young, an Attorney at the Communications Workers of America, District 1, will represent the labor side of the EFCA debate. The management side will be represented by Randel K. Johnson, Vice President of Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce and Martin F. Payson, a Partner at Jackson Lewis LLP.
Congratulations to Isaac Rosenberg (2008 W&M grad & future labor/employment academic) for placing his article Height Discrimination in Employment (which we described here) in Utah L. Rev. Look for a fall publication date.
Wednesday, March 11, 2009
Systemic employment discrimination cases, including private class actions and EEOC "pattern or practice" actions, have been used since the 1960s to redress overt forms of discrimination in the workplace. Today, however, there is an emerging area of systemic employment litigation that holds the potential to play an important role in combating the sources of structural or "second generation" discrimination: systemic harassment litigation. Unfortunately, litigants and courts are generally confused about how systemic harassment claims should be pursued and litigated. Harassment cases do not fit the mold for "pattern or practice" cases outlined by the Supreme Court in International Brotherhood of Teamsters v. United States, leaving the federal courts divided over key substantive and procedural issues in systemic harassment cases.
In this Article, I propose a litigation framework and enforcement strategy for systemic harassment cases that is founded upon the statutory language of Title VII. By carefully observing the distinction between those provisions of Title VII aimed at protecting the interests of individual "aggrieved persons" and the separate provisions aimed at protecting the public interest, a sensible litigation framework can be formulated for systemic harassment cases. Failing to observe this statutory distinction has led the EEOC to pursue an ineffective enforcement strategy. The EEOC's focus in systemic harassment cases has been to obtain monetary damages for individual victims under an increasingly outdated rules-enforcement paradigm, rather than to obtain meaningful prospective relief. As a result, the EEOC has missed an important opportunity to begin addressing structural forms of discrimination. I propose an alternative public enforcement strategy for systemic harassment cases that focuses on obtaining effective consent orders that will usher in structural reform and will result in a more efficient allocation of enforcement resources.
Jason is right -- pattern-or-practice cases are a doctrinal mess, particularly with regard to harassment claims. This is an exceptionally well-researched and argued article that proposes not only an "alternative enforcement strategy", but also a better way to make competing legal doctrines fit together. Incoming journal editors should consider jumping on this article.
I know Jason would welcome comments, especially if you can get them to him within a few days, before he starts sending the article out to journals.
We had a post last year on a RICO suit filed by Cintas against UNITE HERE (a merged union that might split soon). BNA's Daily Labor Report (subscription required) is reporting that the district court judge has just dismissed the suit. The crux of the decision is that the union's corporate campaign to get the company to sign a neutrality and card-check agreement does not constitute attempted extortion. Moreover, the judge described Cintas' complaint as "more a public relations piece than a pleading."
A big win for the union, but given the parties' history, this is certainly not the last skirmish.
The Center for Corporate Equality issued a report today, A Review of OFCCP Enforcement Statistics: A Call for Transparency in OFCCP Reporting. As the name suggests, the report analyzes the fiscal year 2007 enforcement results by the Office of Federal Contract Compliance Programs, part of the Department of Labor. From the press release,
Detailed findings outlined in CCE’s report include the types of systemic discrimination OFCCP resolved in FY 2007, the kinds of industries involved and the levels of employees and applicants impacted; how the financial remedies in settlement agreements were calculated; how long it took OFCCP to open compliance evaluations and resolve them through settlement; and any differences in enforcement strategy between the OFCCP’s six regional offices that audit federal contractor establishments.
“This comprehensive report provides a rare glimpse inside OFCCP’s enforcement operations,” said Patricia Schaeffer, executive director for the nonprofit employer association based in Washington DC. “It provides much needed transparency into how OFCCP enforces its equal employment and affirmative action mission,” she said. “We’re hopeful OFCCP will provide comparable in-depth data in their future enforcement reports,” she said.
Report co-author David Cohen, senior vice president, added “Our goal in analyzing this data was not to judge how OFCCP should conduct its enforcement operations, and this report contains no judgments. We simply wanted to analyze the conciliation agreements and consent decrees that made up OFCCP’s fiscal year 2007 enforcement results and report on what we found,” he said. “This report provides useful baseline data so enforcement trends can be tracked in future years.”
Eric Dunleavy Ph.D., senior consultant, said one of the key findings is “that systemic discrimination is an important OFCCP enforcement initiative.” “This data confirms what OFCCP has been telling us all along – that systemic discrimination is an important enforcement initiative, and it’s clear they have expended considerable resources into that area.”
This is a valuable study into the priorities and enforcement practices of one of the more active agencies working to eliminate discrimination in employment. I can't wait to read it.
Tuesday, March 10, 2009
The ABA's Technology in the Practice & Workplace Committee is holding its midyear meeting at Seattle University Law School on April 29-May 1, 2009. The program looks great and covers the following topics:
- The recent ADA amendments and the use of technology as a means of providing a reasonable accommodation;
- The Genetic Information Non-Discrimination Act (GINA);
- A presentation by Matt Bodie on changes in the Restatement of Law resutling from the introduciton of new technologies in the workplace;
- The use of technology in FLSA litigation;
- The legal issues associated with RFID in the workplace;
- Ethical issues resulting from the globalization of legal services.
You can register for the meeting at the committee's website.