July 10, 2009
Law Profs as Ministers?
The National Law Journal has an interesting report on the litigation between Ave Maria School of Law and three former professors who allege they were were suspended and banned from campus after they objected to the way the law school was being run (as blogger emeritus Paul noted here). From the article
In the latest twist to the two-year-old suit filed in state court by a three former professors, Tom Monaghan, the school's founder and financier, filed a motion last month claiming that the law professors are "ministerial." Therefore, he argues, because the school is a religious institution, the administration over these minister-professors is exempt from civil trial court under the "Establishment and Free Exercise of religious clauses of the First Amendment."
Monaghan also claims that the institution is eligible for "ecclesiastical abstention," requiring courts to "abstain from inquiring into, or interfering with, governance of the religious institution."
This seems a rather risky defense to use for non-clergy law professors from an accreditation standpoint. And while many of us feel like we do a lot of counselling (particularly those of us teaching first-year students and legal writing or clinical programs), I feel fairly confident that few of us would say law professors are engaged in a law teaching "ministry." The motion is up for decision next week, so we'll all have to stay tuned.
Hayes to be Republican Nominee to NLRB
And then there were three. After a delay following the naming of the Democratic nominees (likely the result of Senate Republicans), the White House has just announced that they have nominated Brian Hayes as the final--Republican--member of the NLRB. They have also sent all the nominations to the Senate. According to the press release:
Hopefully, the Senate will move relatively quickly now that they finally have all the nominees, as it would be nice to stop having to worry about the validity of the two-member Board. It's also my impression that Board morale would also be greatly improved once we get all the nominees in place.
Hat Tip: Dennis Walsh, Jeff Wilson, and others.
July 9, 2009
New E-Verify Rule
Homeland Security Secretary Janet Napolitano just announced that all winners of federal contracts must use the E-Verify database to check employees' immigration status. This is the same program that the Bush administration tried to implement, and which generated a lot of criticism. The Obama version, however, has dropped many of the provisions viewed as objectionable under the previous incarnation, such as the requirement that employers fire any worker whose Social Security information didn't match federal records (this no-match rule had been the subject of lawsuits). According to the New York Times:
The move to expand the use of E-Verify reflects the Obama administration’s strategy of keeping up the pace of immigration enforcement while weighing whether to push for an overhaul this year that would give legal status to millions of illegal workers, officials said. But the E-Verify system has also been criticized by immigrant advocacy groups and is facing a challenge in federal court by the United States Chamber of Commerce and other business groups, who say the databases it relies on are also full of errors. . . .
Unlike the no-match rule, E-Verify does not rely only on Social Security records, but also searches Homeland Security immigration records. Last year, the system expanded to include information about immigrants who became citizens. Homeland Security officials said that as a result of recent improvements to the E-Verify system, 96.9 percent of workers who submitted identity information from October to December last year were immediately verified as eligible to work.
Until now, E-Verify has been voluntary, used mainly by employers to check the legal status of workers at hiring. Officials said that under the new regulation, to take effect on Sept. 8, contractors would have to verify all workers, including current employees, when they were awarded work by the federal government.
As with most things, the real impact of this won't likely be known until we see it in practice.
EEOC Will Hold Public Hearing on Age Discrimination July 15
The EEOC has announced that it will hold a public hearing on age discrimination next Wednesday.
Experts will discuss the results of age stereotyping on older workers’ ability to keep their jobs during layoffs or to find work afterwards and the effect of recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA). Panelists will suggest potential enforcement and policy solutions. In addition, representatives from recent ADEA cases will discuss their experiences. Finally, the Commission will issue a technical assistance document that explains terminated employees’ rights and obligations when offered severance pay in exchange for a waiver of discrimination claims.
In accordance with the Sunshine Act, the meeting is open for public observation of the Commission’s deliberations. Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room.
Additional information about the hearing, when available, will be posted at http://www.eeoc.gov/abouteeoc/meetings/index.html .
July 8, 2009
Unions To Meet With Obama
Labor leaders said they hoped to talk with the president about the status of health-care legislation and what the nation’s labor unions can do to advance the administration’s efforts to assure passage of such legislation, including the enactment of a public option in which a government-run health insurance entity would compete with private insurers.
Union leaders also said they wanted to reiterate their opposition to enacting a tax on employee-provided health benefits to help finance health-care reform. Such a move that would hurt union members disproportionately because so many receive health benefits from their employers.
One top A.F.L.-C.I.O. official said the labor leaders also wanted to voice their hopes about enacting the Employee Free Choice Act, which would make it far easier for workers to unionize. . . . Labor leaders are talking with
several senators about various compromises that might help ensure 60
votes. . . .
Union officials said those who will meet with Mr. Obama include John J. Sweeney, the president of the A.F.L.-C.I.O., Andrew L. Stern, president of the Service Employees International Union and Dennis Van Roekel, president of the National Education Association, as well as the presidents of the steelworkers, communications workers, Teamsters, and food and commercial workers.
Union officials said they also expected to discuss trade, what should be done to revive manufacturing and whether the administration should push for a second stimulus package as the unemployment rate heads toward double digits.
Greenhouse also notes that another named attendee, Richard Trumka, AFL-CIO secretary-treasurer, will announce on Thursday that will be running to succeed Sweeney, with Liz Shuler, the executive assistant to the president of the International Brotherhood of Electrical Workers, as his running mate. Greenhouse cites labor leaders as saying that Trumka may be unopposed.
Hat Tip: Paul Secunda
NLRB Still Following Non-acquiescence Policy on Two-Member Decisions
It's not a surprise, but despite the D.C. Circuit's refusal to hear Laurel Baye en banc, the NLRB will continue to use its non-acquiescence policy and issue two-member decisions. The Board recently made that clear in its Standard Plumbing case (see the first footnote). The D.C. Circuit's denial didn't create any substantive changes, so the Board was expected to follow the same course.
Hat Tip: Justin Keith
Massachusetts Challenges DOMA
Massachusetts is suing the United States, challenging the constitutionality of part of the Defense of Marriage Act, according to the Boston Globe. From the article:
The defendants named in the lawsuit include the US Department of Health and Human Services, the US Department of Veterans Affairs, and the United States itself.
The lawsuit questions the constitutionality of Section 3 of the law, which defines the word "marriage" for the purpose of federal law as "a legal union between one man and one woman as husband and wife." It does not challenge the constitutionality of Section 2, which provides that states are not required to recognize same-sex marriages performed in other states.
The suit alleges that the law violates the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds.
This is an interesting take on the matter and should add some important analysis to the debate on states as civil rights laboratories and federalism more generally. I haven't read the complaint, but I'm a little skeptical about the likelihood of success of these arguments. Congress' ability to attach strings to funds is awfully broad, and if the definition of marriage is linked to that enumerated power and not commandeering the state legislative or executive branches, it would seem not to run afoul of the Tenth Amendment. We'll wait and see, though.
UPDATE: Thanks to Hank Leland for sending along this link to the complaint. The complaint does suggest that DOMA commandeers the state executive branch. Here is the crux of the argument:
3. In addition, Section 3 of DOMA, through its application to programs administered by the Commonwealth and funded by the federal government, requires the Commonwealth to treat married individuals in same-sex relationships differently from married individuals in different-sex relationships. When the Commonwealth receives federal funding for various programs, federal law requires the Commonwealth to implement DOMA’s disregard of valid marriages between same-sex couples. Section 3 of DOMA requires the Commonwealth to treat married individuals in same-sex relationships as single, imposing an impermissible condition on the Commonwealth in violation of the Spending Clause of Article I of the United States Constitution.
After reading the complaint, I'm more hopeful about the legal arguments. Read the full complaint for details about how the state is harmed by this part of DOMA and for more on why that injury is a constitutional one.
July 7, 2009
Ward Churchill "Remedy" Upheld
Earlier this year, Ward Churchill won his claim that his termination violated the First Amendment--but he received only $1 in damages. Today, a judge upheld that award. According to the New York Times:
Chief Judge Larry J. Naves of Denver District Court ruled that the university’s regents were effectively acting as judicial officers when they voted to dismiss Mr. Churchill in 2007 after a faculty committee concluded that he had committed academic fraud. As a result, Judge Naves found, the regents were legally protected from Mr. Churchill’s effort to reverse their ruling. . . .
Mr. Churchill, an ethnic studies professor, caused an uproar when he referred in an essay to some victims of the Sept. 11 terrorist attacks as “little Eichmanns,” and argued that that was the true reason he was terminated. He filed a wrongful-termination suit, and after a trial earlier this year, a jury found that his political views played a substantial role in his dismissal. But in his 42-page ruling, Judge Naves said the jury’s decision to award Mr. Churchill only $1 compelled him to deny reinstatement.
“If I am required to enter an order that is ‘consistent with the jury’s findings,’ I cannot order a remedy that ‘disregards the jury’s implicit finding’ that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy,” Judge Naves wrote. Judge Naves also said that Mr. Churchill’s rejection of the faculty committee’s conclusion that he had engaged in academic misconduct had made it difficult to return Mr. Churchill to campus.
I haven't read the decision, but equating university regents to judicial officers definitely catches my attention. I don't know how they do things in Colorado, but most regents I'm aware of are nothing close to judges.
Hat Tip: Hank Leland (for supplying the link to the decision, which was added above)
The D.C. Circuit's Register-Guard Decision
The D.C. Circuit has just released its review of the NLRB's Register-Guard decision, in which the Board refused to give employees protection when using employer-owned email and severely restricted the discrimination exception to employer bans on workplace communications. The short take: it's a yawner compared to the Board decision. The court decided the case on very narrow, basically factual grounds and the Board's new rules survive another day.
The headliner issue--the extent to which use of the employer's e-mail or computer is protected by Section 7--wasn't even an issue before the court as the union didn't challenge that part of the Board's decision (I'd be curious if anyone has an insight on this decision--confidence on the application to these facts or perhaps just biding time until a new Board takes care of it?). At issue, therefore, was whether the employer's application of its non-job-related solicitation ban was discriminatory. The court could have addressed the less-publicized, but more significant aspect, of the Board's decision, which defined discrimination as "unequal treatment of equals." Instead, the court--enforcing the Board in part, and refusing to enforce in part--held that the employer's rule simply didn't apply to the union president's emails at issue in the case. Thus, under any definition of discrimination, the discipline was inappropriate (the court also upheld the Board's finding that the employer unlawfully disciplined a manager for wearing a union armband and placard):
We further conclude that substantial evidence does not support the Board’s determination that the Register-Guard acted lawfully in disciplining Prozanski for the August e-mails. We agree with the Board that those e-mails did constitute solicitations, as they “called for employees to take action in support of the Union.” But the Board did not find that the company disciplined Prozanski merely because the e-mails were solicitations, as such discipline would have been inconsistent with the Register-Guard’s practice of permitting other kinds of personal solicitations. As the Board noted, “[t]he evidence shows that the [Register-Guard] tolerated personal employee e-mail messages,” including solicitations for “sports tickets or other similar personal items.” Rather, the Board found that it was not discriminatory to discipline Prozanski for the August e-mails because they were solicitations on behalf of an organization rather than an individual, and there was “no evidence that the [Register-Guard] permitted employees to use e-mail to solicit other employees to support any group or organization.”
Whatever the propriety of drawing a line barring access based on organizational status, the problem with relying on that rationale here is that it is a post hoc invention; the company never invoked it before the General Counsel filed his complaint. . . . In short, neither the company’s written policy nor its express enforcement rationales relied on an organizational justification. The August memo gave only one explanation for disciplining Prozanski: she had “use[d] the system for dissemination of union information.” Thus, the Board’s observation concerning the May disciplinary warning -- that it was “clear from the warning itself that the [Register-Guard] disciplined Prozanski for sending a union-related e-mail,”-- was equally true of the August warning. Indeed, in practice the only employee e-mails that had ever led to discipline were the union-related e-mails at issue here. On this record, substantial evidence does not support the Board’s determination that Prozanski was disciplined for a reason other than that she sent a union-related e-mail.
In the end, this Board-level blockbuster fizzled out at the D.C. Circuit--at least for those of us looking for more legal fireworks. What that means is that the issues over the level of protection for e-mails and how to define discrimination will have to wait for the Obama Board.
Hat Tip: Meredith Jason, Dennis Walsh, and others.
The Next ERISA Supreme Court Case
Going unnoticed in all the hub-bub surrounding the Ricci decision was the fact that the Court granted cert. in another important ERISA case concerning the deference due to plan administrators in Section 502(a)(1)(B) denial of benefit cases.
Peter Stris, a professor at Whittier Law School and partner at his own firm, will argue the case for the Plaintiffs/Respondents in Conkright v. Frommert. Here is a description of the case from a press release Peter issued today:
“Xerox wrongfully under-calculated the pensions of hundreds of individuals,” noted Stris. “About that there is no dispute. The fight is over the remedy. Xerox argues that it should decide how much money the plaintiffs get, and that its determination must receive deference from the courts.” Stris continued: “There is no language in ERISA that supports Xerox—which is not surprising. The explicit purpose of the law is to protect pensioners. Xerox’s argument has no natural end: employers with vast resources could insist on endless attempts to re-calculate pensions. And because ERISA does not permit the recovery of punitive damages, these employers could effectively tie up retirees everywhere in litigation forever. This litigation, which has continued for a decade, illustrates the very point. If the Supreme Court accepts the position urged by Xerox, no one’s pension will be safe.”
The case will likely be argued next Term in December or January. I am in the process of drafting an amicus brief for law professors in support of Respondents. Any interested law professors should contact me (firstname.lastname@example.org) if they are interested in joinging the brief.
The WARN Act and the Recession
With all the job losses accompanying the current recession, it's no surprise that the WARN Act has been getting a higher-profile. In particular, the business exigency exception is getting more attention. That exception was supposed to be fairly narrow, but as explored in a recent Wall Street Journal article (which cites James Brudney (Ohio State), that's not always the case in practice:
WARN, which took effect in 1989, requires companies to give notification to employees and local government before a "mass layoff," which it defines as 50 full-time workers, constituting at least one-third of the staff at a single location, or any layoff of more than 500 people. It applies to companies with more than 100 employees. The notice is intended to give workers time to look for employment and local governments a chance to provide group job counseling and training. The law provides numerous exceptions. Companies deemed "faltering" don't have to give notice if they think an announcement would hurt their efforts to raise new capital. Employers can also avoid providing warning, the law says, if layoffs were due to natural disaster or changes in business circumstances that weren't "reasonably foreseeable."
Companies contacted about specific pending action declined to provide details of their defenses. But broadly, corporate-defense attorneys say WARN gives employers the chance to seek funding so job cuts can be avoided. They say many companies need the law's protections as they try to remain profitable. . . . Workers' advocates argue that WARN's exceptions are too easy to invoke, and that the law lets companies stagger layoffs to avoid triggering the rule. It doesn't provide for punitive damages, so the most employees can recover is two months of pay and benefits.
James Brudney, who helped draft the act as then-chief counsel of the Senate Subcommittee on Labor, notes the initial WARN legislation was vetoed by President Ronald Reagan. The law that eventually passed, Mr. Brudney says, had lower penalties than the original, provided a shorter notice period, raised the threshold of a mass layoff and gave the Labor Department no power to investigate possible violations.
Late last month, Sen. Sherrod Brown, an Ohio Democrat, and representatives of both parties introduced a bill that would empower the Labor Department to enforce WARN, double its maximum penalties, apply the law to smaller worker groups and raise the notice period to 90 days. Several states, including Hawaii and New York, have recently enacted their own versions of WARN with stricter penalties and narrower exemptions than the federal law. . . .
Since the recession began in December 2007, the U.S. Department of Labor says 3.8 million people lost jobs in about 37,000 mass layoffs, which it defines as groups of 50 or more. In May, 312,880 workers were part of mass layoffs, the highest level on record. Only a small portion appear to be receiving the two-month cushion. The most recent look by the Government Accountability Office, in 2003, showed that one-quarter of mass layoffs met all the conditions for a WARN filing. Of those cases, only about one-third of companies gave the proper notice. Companies file WARN notices with their states, and there is no national database.
As the article notes, another big hole in WARN is that few employers are covered by the act although those employers employ a disproportionate number of workers). It'll be interesting to see if any of the proposed amendments go anywhere.
July 6, 2009
Stone on Transferred Intent
Kerri Stone (Florida-International) has a post at Prawfsblawg on transferred intent after the Supreme Court's recent decision in Ricci v. DeStefano.
She notes the majority's opinion seems to say that any person adversely affected by a decision in which race was a consideration (even if that person was not a member of that race) would have a disparate treatment claim under Title VII. She then observes:
Consider a tougher hypothetical. If an employer with an expressed bias against Asian Americans announced that in attempt to lower the number of Asian Americans in his workforce, he would be firing all employees who had one-syllable last names, and if a non Asian-American got fired because of this, would a cause of action under Title VII be viable? I ran this idea by Professor Anne Lofaso, and she commented that upon reading the case, she had thought that it would make proving discrimination cases easier for all Title VII plaintiffs.
I am thinking of writing on this principle, and I’d love to hear others’ thoughts.
I think that this is probably a correct assessment of the bottom line, and it does seem to make some kinds of disparate treatment cases easier to prove. There's still the problem of showing that race is a consideration, which seems the bigger hurdle in most disparate treatment cases.
July 5, 2009
A Review of This Term's Discrimination Decisions
The National Law Journal recently summarized this Supreme Court term's discrimination cases (Ricci, Crawford, Pyett, Gross, and Hulsteen). Among the commentators was Marcia McCormick (St. Louis University), Paul Secunda (Marquette), and friend-of-the-blog Paul Mollica:
[T]he Crawford victory was narrower than it should have been, according to Marquette's Secunda. Title VII prohibits employers from retaliating against employees who "oppose" any unlawful practice of the employer or "participate" in an investigation of conduct made unlawful under that law. The justices ruled for Vicky Crawford under the "opposition" clause of the retaliation provision and chose not to decide whether there also was liability under the "participation" clause. "There are many more participation retaliation cases brought than opposition cases," he said. "Although it was definitely a pro-employee ruling, it also was more limited."
[As for Ricci,] "[i]t is going to force municipalities to rely on consultants, lawyers and others to make sure that, before the test-takers sit down, they have done everything they can to make sure the test doesn't have a disparate impact," said labor counsel Paul Mollica, partner at Chicago's Meites, Mulder, Mollica & Glink. "On a practical level, once the test-takers start filling in the holes, it creates a covenant that the municipality will honor the results of the test. The Court is definitely telling us now there is a before and after and it's not interested in post hoc solutions." . . . "The majority tried very hard to suggest this was a really narrow decision and only applied to changes made in midstream — once the testing process has begun," said Marcia McCormick of Saint Louis University School of Law. "But at the same time, employers are very conservative. They're not just worried about losing a lawsuit but the cost — financial and reputational — of one being brought."