Workplace Prof Blog

Great Series in Slate on Background Situation in New Haven Fire Department

Nicole Allan and Emily Bazelon have written an excellent 5-part series at Slate about the New Haven Fire Department and race relations in fire departments in other cities in anticipation of Monday's decision in Ricci v. DeStefano. Here is a sort of table of contents:

• Part 1: A Connecticut City's Race Problem Sparks a National Debate
• Part 2: Do White, Black, and Hispanic Firefighters in New Haven Get Along?
• Part 3: Why Did New Haven's White Firefighters Test Better Than Blacks and Hispanics?
• Part 4: Is There a Better Way to Decide Who Gets Promoted?
• Part 5: Is There Any Fair Solution to the New Haven Case?

The series goes in depth into a number of the issues that get glossed over in the usual media coverage of this case, avoiding rhetoric and legal jargon and explaining what are very complicated matters. I highly recommend reading it if you are at all interested in the case or employment discrimination and equality issues more generally.

MM

Call for Papers on Sexual Orientation and Gender Identity

Call for (Short) Papers
AALS Section on Sexual Orientation and Gender Identity Issues


On the Cutting Edge:  Charting the Future of
Sexual Orientation and Gender Identity Scholarship

AALS Annual Meeting
 January 6-10, 2010 in New Orleans, Louisiana

Thirty years ago, Rhonda Rivera published “Our Straight-Laced Judges:  The Legal Position of Homosexual Persons in the United States,” the first comprehensive law review article of its kind.  Since then, the sexual orientation and gender identity legal literature has exploded, with hundreds of articles considering all imaginable aspects of the law’s relationship to gender identity and sexual orientation.  At the same time, political demands of lesbians, gay men, bisexuals, and transgender have both multiplied and moved to the center of cultural debates, and the body of case law addressing these issues has likewise grown exponentially.   What, then, are the next steps for legal scholarship?  

The program’s aim is to highlight new issues, new theories, possibilities for linking theory and practice, and visions of the field for the decade(s) to come.  

Because the program aims to spark new ideas, this Call for Papers is for short essays – from 1000 to 2000 words – rather than for full-length papers.  Submissions will be considered for two purposes:

Program participation – One submission will be selected for presentation at the SOGII program at the Annual Meeting, which will be held from 10:30 a.m. to 12:15 p.m. on Saturday, January 9, 2010, in New Orleans.  The selected author will have to rely on his or her own institution for funding to attend the conference.  

Publication – Up to twenty submissions will be selected for publication in a special volume of the Sexuality & Law Journal (published at Tulane Law School) dedicated to the panel topic.  

The SOGII Section executive committee will serve as the selection committee.  For both purposes, essays must be no longer than 2000 words, including footnotes.

The deadline to submit a draft essay is Tuesday, September 1, 2009.  Essays can be revised, subject to the approval of the Journal editors, through the fall semester, although 2000 words will remain the outer length limit.  Please submit the draft paper to Professor Suzanne B. Goldberg, Chair of the Section on Sexual Orientation and Gender Identity Issues, as an attachment to an e-mail at suzanne.goldberg@law.columbia.edu.  Submissions will be reviewed by members of the SOGII Section's Executive Committee.  Decisions will be communicated by late September 2009.  

Hat tip: Scott Moss

MM

Chevron and the Two-Member NLRB

As we posted recently, the Second Circuit recently relied on the Chevron doctrine to support the NLRB's issuance of two-member decisions.  In Snell Island, the court essentially held that the Board's determination that Section 3(b) of the NLRA permitted such decisions was deserving of Chevron deference.  I had some doubts about this use of Chevron, and apparently I wasn't alone.  Following the NLRB's 28(j) letter [Download NLRB's 28(j) letter] (notifying the court of a new, relevant decision) to the D.C. Circuit, which is considering an en banc petition on the same issue in Laurel Baye, the employer responded with an attack on the Second Circuit's Chevron analysis [Download Laurel Baye's response to NLRB's 28(j) letter]:

[The basis premise of the Second Circuit's reliance on Chevron] is flawed.  Notable absent from the Board's brief to this Court is any citation to Chevron or any contention that Chevron deference was warranted.  Nor did the Board make any such contention during oral argument.

Further, there is no Board "interpretation" of the statute to which this Court could defer under Chevron.  The Board did not undertake to make its own independent determination as to the meaning of [Section] 3(b).  This issue was never litigated in any formal Board proceeding, nor did the Board engage in any formal rulemaking.  Instead, the Board sought an opinion from the Office of Legal Counsel of the U.S. Department of Justice, and the Board agreed to be "bound" by that determination. . . .  Thus, it is the opinion of the OLC, not the Board, to which the Second Circuit deferred.

The plot thickens further  . . . .

Hat Tip:  Justin Keith

-JH

Gross Need for More Empathy on the Supreme Court?

Steve Kardell, an L&E attorney in Dallas, has a recent op-ed piece on the Gross case in the Dallas-Morning News (via USA Today).  Among his points is one that I found particularly objectionable:  the Court's willingness to reach far beyond the parties' arguments without allow for more briefing (which is not to say that I found the substance of the decision any more palatable):

The decision is noteworthy, and not just because the court went out of its way to slap down age claims. It's unique because it went further than the facts presented or what the lawyers for the company were seeking. It was like you sue to keep your neighbor from putting up an encroaching fence and the court awards you the deed to his house. This is the stuff of lawyer dreams.

Various groups, including the AARP and the federal government, had hoped for a positive ruling, arguing that a burden-of-proof issue like this should be a no-brainer. A trade group of lawyers that represents employees actually urged the court to take the case, hoping they would clarify the law. The court clarified it all right, and then some. As your mother would say, be careful what you wish for. . . .

[Y]ou have to wonder if any of the five justices that got carried away with this arcane burden-of-proof issue ever had a family member treated like Jack Gross? His situation, unfortunately, presents itself daily in employment decisions, in that the employer's given reason for the adverse action was highly suspect and raised strong suspicions of age discrimination.

Critics of the concept of empathetic judges run the gamut. Some make intellectual arguments that have real merit. Some are practical, pointing out that empathetic judges are usually bad for "bidness." Some are on the fringe. . . . The Gross case supports the argument that it might not be a bad idea to have a justice or two who can empathize with what it feels like to be an employee in today's business environment.

-JH

Stateside Misuse of Canadian Labour Law

David Doorey (York) writes:

A number of Canadian labour law and industrial relations scholars have noted references in the Employee Free Choice Act debates to Canadian law and the effects of those laws.  The most obvious example is the paper by Anne Layne-Farrar, in which she contends that the higher unionization rates in Canada provide evidence that unionization leads to unemployment, but there have been other erroneous descriptions of Canadian labour laws and outcomes as well.  Canadian scholars have challenged Layne-Farrar's methodology and findings, and have queried how it is that Canadian 'labour friendly' labour laws lead to unemployment when Canada has higher employment, lower unemployment, less poverty, and lower income inequality than the United States.  Sure makes for interesting discussions though.  Since Canadian law and policy is being used in the American debates, often inaccurately, an initiative has been launched by the York University-based Centre for Research on Work and Society.  It will include a special edition on the use of Canadian law and data in the Employee Free Choice Act debates to be published next month in the on-line (free!) journal called Just Labour.

For much more, see David's post Canadian Academics Weigh In on American Employee Free Choice Act Debate at Doorey's Workplace Law Blog.

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The Pedagogy of Global Workplace Law

Susan Bisom-Rapp (Thomas Jefferson) writes to alert us that five of the six articles in the March 2009 issue of International Journal of Comparative Labour Law and Industrial Relations now are available on SSRN.  Here they are:

• Timothy P. Glynn, A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones.
• Ruben J. Garcia, Teaching Problem-Solving and Preventive Law Skills Through International Labour and Employment Law.
• Michael J. Zimmer, Two Halves of a Whole: Teaching International And Comparative Employment Law.
• Susan Bisom-Rapp, Fearing Minefields But Finding Goldfields: Teaching International and Comparative Workplace Law in China or Anywhere Else. 
• Rafael Gely, Workplace Songs: Developing a Framework for Research and Teaching.

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No Ricci Decision Today -- Wait Until Monday

The Supreme Court released a slew of decisions today, but did not release an opinion in Ricci et al. v. DeStefano (the New Haven firefighters discrimination case).  Stay tuned until Monday.

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Monitoring Keystrokes Unlawful, Court Holds

Mitch Rubinstein reports over at Adjunct Law Prof Blog the recent decision of Brahmana v. Lembo, ___F.Supp.2d___(N.D. Cal. May 20, 2009), in which a federal court held that an employee stated a claim under the claim under the Electronic Communications Privacy Act by alleging that his employer unlawfully monitored his computer keystrokes in order to obtain the password to his personal email account.

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States, Strapped for Cash, Ramp Up Employment Classification Audits

Is a worker an employee or independent contractor?  The legal distinction between the two often is clear as mud, but the consequence for guessing "independent contractor" when the answer is "employee" can be a huge bill to employers for back wages (especially overtime) and back taxes.  Jerry Kalish writes in BizBox:

[T]ax advisors have been reporting that in addition to the IRS, several states are stepping up their audit and enforcement activities of small businesses to determine if workers are being properly classified. And it’s not just a payroll tax matter for the states, by the way: it’s also about getting employers to pay employment tax on workers the state considers employees.

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Oregon to Prohibit Captive Audience Speeches?

Michael Fox at Jottings by an Employer's Lawyer reports that both houses of the Oregon legislature have passed a bill that would prohibit captive audience speeches.  The bill still must be signed by the governor, and it is quite likely that courts would find the bill preempted by the National Labor Relations Act.  Paul Secunda has written on this topic, and Kye Pawlenko just published this week a reply to Paul's article. 

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Recently Published Scholarship: HJLEL

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Hofstra Labor & Employment Law Journal

Volume 26, No. 1, Fall 2008
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Articles

• Richard A. Bales & Jason N.W. Plowman, Compulsory Arbitration as Part of a Broader Employment Dispute Resolution Process: The Anheuser-Busch Example, p. 1.
• Philip B. Rosen & Richard I. Greenberg, Constitutional Viability of the Employee Free Choice Act's Interest Arbitration Provision, p. 33.
• Steven Andrew Smith & Adam Hansen, Federalism's False Hope: How State Civil Rights Laws Are Systematically Under-Enforced in Federal Forums (And What Can Be Done About It), p. 63.
• Natalie Bucciarelli Pedersen, A Subjective Approach to Contracts?: How Courts Interpret Employee Handbook Disclaimers, p. 101.
• Jodie Meade Michalski, Knowing When to Keep Quiet: Weingarten and the Limitations on Representative Participation, p. 163.

Practitioners' Notes

• David K. Fram, Esq., The ADA Amendments Act: Dramatic Changes in Coverage, p. 193.

Notes

• Anthony J. Graniere & Hilary McHugh, Are You In or Are You Out? The Effect of a Prior Criminal Conviction on Bar Admission & A Proposed National Uniform Standard, p. 223.
• Thomas Moyher, Robert T. Szyba, From the Rat to the Mouse: How Secondary Picketing Laws May Apply in the Computer Age, p. 271.
• Katie A. Mabanta, Alyson B. Skloot, A Lower 'Salt' Content for Employers, p. 301.

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D.C. Circuit Reconsidering Its "Entrepreneurial Opportunity" Test?

As we reported a few months ago, in Fed Ex Home Delivery v. NLRB, a D.C. Circuit panel set forth a test for the employee versus independent contractor question that relied almost exclusively on the worker's entrepreneurial opportunity, rather than the typical Darden factors.  In early June, the NLRB filed a petition for rehearing and rehearing en banc.  On June 16, the court ordered that FedEx respond to the NLRB petitions--a hopeful sign for the full court taking the case.

Stay tuned.

-JH

New Rules for Transgendered Federal Workers?

The New York Times is reporting that the Obama administration is "quietly" writing new rules to protect transgendered federal workers from discrimination.  According to the Times:

The guidelines will be in an updated federal handbook for managers and supervisors to be distributed and posted online in the next couple of months, and they could also be included in other materials for managers. They will list transgender people — those who identify their gender differently from the information on their birth certificates — as among several groups protected by antidiscrimination laws. . . .

The guidelines will further interpret a section of the civil service law that broadly bars federal supervisors from taking any action against an employee based on anything other than job performance. Guidelines for federal supervisors already ban them from taking any job action “against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status or political affiliation.” An executive order signed by President Bill Clinton in 1998 added sexual orientation to that list of categories.

Perhaps this will fan the flames to put sexual identity back into whatever new version of ENDA that we will no doubt see soon.

-JH

Health Workers Picketing

Last week, the Second Circuit overturned an NLRB decision involving health care workers terminated for engaging in recognitional picketing.  The employer argued that it could fire the workers because they did not give the 10-days notice required by Section 8(g) and the Board agreed (with a dissent by now-Chairperson Leibman).  In essence, the Board concluded that picketing that did not meet the 8(g) notice requirement was unprotected conduct.  In Civil Service Employees v. NLRB (Correctional Medical Services), however, the Second Circuit rejected that argument.

The court agreed with several points made by Liebman.  In one of her arguments, she noted that the majority's conclusion made part of Section 8(d) superfluous.  She was referring to that section's mandate that an improperly noticed strike would be unprotected (participants in such strikes lose their status as "employees"); 8(d) doesn't say the same about improperly noticed picketing.  Under the majority's conclusion, however, Section 8(g) renders both picketing and strikes that do not give 10-days notice unprotected--making part of 8(d) superfluous. The court agreed with Liebman and held that although unions are clearly prohibited from engaging in improperly noticed strikes or pickets, the only sanction against individuals specified in the NLRA is for strikes.

Check out the full decision for more discussion of the history and policies behind these provisions.

Hat Tip:  Dennis Walsh et al.

-JH

No Word on Ricci; Voting Rights Act Safe for Now

It looks like we'll have to wait until next Monday for the opinion in Ricci to be released. The Supreme Court issued three opinions, leaving seven more from the term to be decided. (See the Scotusblog live blog for orders and links) The Court did not, as it did last Monday, indicate that some opinions would be issued this Thursday, so they must be planning a blockbuster day for Monday.

One of today's opinions did have significance at least for public employment, and that is the Northwest Austin Municipal Utility Dist. No. One v. Holder (NAMUDNO for short--discussed previously here). In this case concerning the 2006 extension of the Voting Rights Act, the Court avoided the question of whether the extension was constitutional under the Fourteenth and Fifteenth Amendments and decided that the statute allowed all political subdivisions of a state to file bailout suits to avoid the preclearance requirements. Justice Thomas would have decided that the extension was unconstitutional because Congress did not have any evidence of continuing intentional deprivations of voting rights on the basis of race.

What's unclear still after NAMUDNO is whether Section 5 of the Fifteenth Amendment is analyzed the same way as the Fourteenth Amendment, requiring congruence and proportionality to a current and ongoing constitutional harm, and whether the VRA extension would pass such a test. Similarly, it is unclear for other statutes, like Title VII, whether the passage of time will make them no longer able to pass such a test and unconstitutional.

MM

Recently Published Scholarship

Articles

• William R. Corbett (photo above), Awaking Rip Van Winkle: Has the National Labor Relations Act Reached a Turning Point?, 9 Nev. L.J. 247 (2009).
• Jiefeng Lu, Employment Discrimination in China: The Current Situation and Principal Challenges, 32 Hamline L. Rev. 133 (2009).
• Kye Pawlenko, The Non-Viability of State Regulation of Workplace Captive Audience Meetings: A Response to Professor Secunda, 32 Hamline L. Rev. 191 (20-09).

Student Scholarship

• Cameron Cloar, Through the Price Waterhouse--Looking Glass: Dominance and Oppression Revealed, 43 U. San Fran. L. Rev. 703 (2009).

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Recent Postings on SSRN

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Several articles have been posted to SSRN in the last couple of days -- too many for us to post on individually.  Here they are:

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• Susan Bisom-Rapp (Thomas Jefferson), Fearing Minefields But Finding Goldfields: Teaching International and Comparative Workplace Law in China or Anywhere Else, International Journal of Comparative Labour Law & Industrial Relations (Susan gave an enthusiastic presentation of this topic at the AALS mid-year meeting earlier this month in Long Beach).
• Timothy P. Glynn, A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones, International Journal of Comparative Labour Law and Industrial Relations (This essay explores how the study of comparative and international employment law providess an opportunity not only to learn about other legal regimes, but also to bridge the divide between employment law and other areas of regulation at home. In the corporate context in particular, it challenges us to reconceptualize the legal relationships among the firm’s stakeholders -- workers, managers, investors, and others.)
• John Monahan et al., The Limits of Social Framework Evidence (a reply to Professors Hart and Secunda).
• Rafael Gely, Workplace Songs: Developing a Framework for Research and Teaching, International Journal of Comparative Labour Law and Industrial Relations (This essay discusses the extant literature on workplace songs and provides some ideas for future research, as well as some thought about ways to incorporate workplace songs as a topic of discussion in industrial relations and related courses).
  

Some Reactions to Two-Member NLRB Situation

Massachusetts Lawyers Weekly (subscription required) has a recent article on the two-member NLRB circuit split.  The article focuses on labor attorneys' reactions to the situation (at least management-side reactions), including attorneys like Justin Keith--a frequent commenter to this blog--who are litigating these cases.   Here's an excerpt:

Calling it a "huge problem," Justin F. Keith, of Greenberg Traurig in Boston, said "it's up in the air, depending on which circuit you ask, whether the NLRB exists today as a functioning body, [where] they only have two members. I know that sounds kind of glib and sarcastic, but that's what it is right now." . . . "It really is crazy, because if you're in the 1st Circuit and you receive an adverse decision from one of these two-member boards, it's technically valid according to [Northeastern Services]. But you could just run to D.C., and it is going to get vacated on the basis of Laurel Baye," said Keith. "I haven't seen one of those petitions filed yet, but I'm sure they're going to be coming very soon in the D.C. Circuit." . . .

Asked how Laurel Baye will affect parties on the losing end of an NLRB case, Robert H. Morsilli, a labor lawyer in the Boston office of Jackson Lewis, said all an aggrieved party has to do right now is travel to Washington and file an appeal on jurisdictional grounds. . . .

Boston lawyer Ellen C. Kearns, whose firm Constangy, Brooks & Smith successfully argued Laurel Baye, said in addition to board decisions, other NLRB powers - such as certification of election results, pursuit of certain injunctions and authority over cases involving reinstatement and back pay relief - have been called into question. With the quorum issue pending in seven circuits, she said the U.S. Supreme Court should step in and settle the matter. . . .

Keith, along with Sheldon E. Richie and Greenberg Traurig's Joseph W. Ambash, recently co-authored a petition for writ of certiorari to the Supreme Court on the case. In seeking review, Keith said Laurel Baye, for which the NLRB has now sought en banc review, has cast into doubt the validity of hundreds of decisions and has left employees, employers and unions unclear as how to proceed.

Acknowledging that only a small percentage of cases ever see the light of day before the Supreme Court, Keith said the importance of the issues presented require his petition to be allowed. "This is a problem that has the potential to come up time and time again, and we've already seen just in these three circuits the uncertainty and the chaos it creates," he said. "This is a case that demands Supreme Court review because we essentially have an administrative agency, which is responsible for creating and enforcing all of the United States' labor policy, acting with a minority membership, and no one knows whether that is legitimate or not." . . .

Richard D. Wayne, of Hinckley, Allen & Snyder in Boston, pointed out that, under the law, the board must have five members. "Because they don't have a quorum, my feeling is they should not have the authority to issue a ruling," he said. Wayne unsuccessfully presented that argument in Northeastern Land Services, in which 1st Circuit Chief Justice Sandra L. Lynch, in a case of first impression, upheld the NLRB's authority to issue decisions with a two-member board. 

I'll be very curious to see whether the Court grants cert.  The circuit split is there, although it's a situation that the Court may view as being too rare to worry about (sadly, not rare enough).  We'll see.

-JH