Saturday, December 12, 2009

Alberta Labor Relations Board Constitutionalizes Mandatory Dues Check Off

Canadianflag David Doorey from York Univ. (Toronto) promises us a story that will intrigue some and outrage other Americans (on the outrage side, see the forthcoming comments to this post from the National Right to Work Foundation and James Young). 

David tells us that the Alberta labour relations board ruled recently that the Canadian constitution requires governments to include in their labour legislation a requirement that collective agreements include a provision requiring mandatory union dues checkoff whenever the union requests such a clause be included.  In essence, it constitutionalizes mandatory dues check off.

The case is linked on David's blog entry here.



December 12, 2009 in International & Comparative L.E.L., Labor Law | Permalink | Comments (1) | TrackBack (0)

Friday, December 11, 2009

Senate HELP Committee Approves EEOC and DOL Nominees

CongressThe Senate HELP (Health, Education, Labor & Pensions) committee approved a bunch of nominees yesterday including the three nomineees for the EEOC, Jacqueline Berrien, Chai Feldblum, and Victoria Lipnic, and the nominee to direct the DOL's Women's Bureau, Sara Manzano-Diaz. Now it's off to the full Senate for final confirmation. Congratulations on this step!

Hat Tip: Pat Schaeffer


December 11, 2009 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Thursday, December 10, 2009

Deputy Secretary of Labor Harris Featured in WSJ Article on DOL

DOL-seal Thanks to friend of the blog, Mitch Rubinstein (also blogger over at Adjunct Law Prof Blog) for bringing to our attention this article from the Dec. 8th edition of the Wall Street Journal entitled: Solis Pushes Agenda to Bolster Labor. Current Deputy Secretary of Labor Seth Harris, a New York Law School Professor on leave, is featured.

Here's a taste:

    Ms. Solis's agenda will promote rules requiring employers to increase disclosure to workers on how their pay is computed, strengthening affirmative action requirements for federal contractors, and compelling greater disclosure from employers about their dealings with consultants who advise the companies on how to deal with workplace unions or unionization attempts.

    Currently employers and consultants are not required to report "advice" they get from consultants, but the Labor Department said in a statement that this filing exception should be narrowed so employees will have a more transparent view into what employers are doing in response to union matters.

    The agency "is going to explore that exception and try to more accurately define what advice means," Deputy Labor Secretary Seth Harris said in an interview. More broadly, "Our goal is that through greater openness and transparency, we increase compliance without having to send an investigator into the workplace."


December 10, 2009 in Beltway Developments, Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

Wednesday, December 9, 2009

AALS Discrimination Section Newsletter

Aals logo Julie Suk (Cardozo; currently visiting at Chicago) has sent us, for posting on Workplace Prof Blog, this copy of the AALS Section on Employment Discrimination Newsletter Fall 2009.  She put it together in her capacity as Section Secretary.  Thank you, Julie, so much for taking the time to put it together!


December 9, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Federal Agencies Ordered to Put More Data Online

White houseThe Office of Management and Budget issued an Open Government Directive yesterday, designed to make federal agencies and regulated entities more transparent. Agencies have been directed to (among other things) publish more information online, improve the quality of government information, and to use emerging technologies to gather information and communicate more effectively with the public.

Two of the more specific mandates are especially interesting.:

To the extent practical and subject to valid restrictions, agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA. 

Within 45 days, each agency shall identify and publish online in an open format at least three high-value data sets (see attachment section 3.a.i) and register those data sets via These must be data sets not previously available online or in a downloadable format.

And in sixty-days, information related to each agency's open government initiative will be available on an Open Government Webpage located at http://www.[agency].gov/open.

It will be interesting to see what kinds of high-value data sets various employment and labor agencies will pubilsh. I'm particularly looking forward to data the EEOC might be able to provide, since it publishes almost nothing and since (as I've at least argued), information the EEOC collects is essential to understanding what the content of the antidiscrimination norm is. I predict a much richer round of empirical research in the area in the near future.


December 9, 2009 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Zelinsky on Bending the Medicare Cost Curve

Zelinsky_ed Not exactly an "employee benefits" issue, but close enough.  Here is a taste of Ed Zelinsky's (Cardozo) thoughts on what we need to do with Medicare going forward on the Oxford University Press Blog:

As Congress debates national health care reform, there is a growing disparity between the rhetoric of cost reduction (which everyone nominally favors) and the reality of electoral politics (which inhibits elected officials from alienating constituents by actually reducing costs). Indeed, there appears to be an inverse correlation between the vociferousness of Congress’ claim to be bending the medical cost curve and Congress’ willingness to undertake the practical steps to control medical outlays.

I propose a politically feasible measure to help control future Medicare costs: Congress should mandate on a delayed basis the higher eligibility age of 67 for Medicare. Congress would thereby match the older retirement age being required for full Social Security benefits with an older age for Medicare eligibility. Congress would thus compel future Medicare cost savings by reunifying at 67 the age for Medicare eligibility with that higher age for full Social Security benefits.

As I told Ed, just like I think the social security age will continue to go up, so will the Medicare one.  Read the whole post for his thought-provoking ideas.  Also interesting because the Senate is considering adding a buy-in Medicare feature for those 55-64.


December 9, 2009 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

The Great Turducken Case

TurduckenI may be vegan, but even I can't resist this one.  A recent Ninth Circuit decision looks to be on the way to the Supreme Court, in part due to a dissent by Jude Kozinski that describes the area of law at issue--employee privacy--as being such a mess that it resembles a turducken.  At issue was the Bush Administration's decision in 2004 to require government background checks for certain contractors.  The plaintiffs worked at the Jet Propulsion Lab, which has a contract with Cal Tech and NASA.  They argue that the background checks are overly intrusive and violate their privacy rights. A Ninth Circuit panel agreed to suspend the checks while the case was proceeding and a petition for en banc prompted Judge Kozinski's dissent (he wanted an en banc panel) as well as another dissent supporting the government.  The government has now joined in asking for Supreme Court review, so we may be seeing this at the Court soon.  As reported by the New York Times:  

The plaintiffs say the government investigations are needlessly intrusive and violate their privacy rights. . . .  Much of what the laboratory’s employees were asked to disclose was . . . perfectly ordinary. But they were also asked about drug use and counseling, and they were required to sign a form authorizing the government to collect information from schools, landlords, employers and others.

That additional information was to be sought through another form, this one soliciting “adverse information,” including “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs” and “mental or emotional stability.” There was also a space on the form for a little essay that invited “derogatory as well as positive information.”

It is not clear how the government was to use the information it gathered. But a document briefly posted on an internal Web site at the laboratory said employees might be deemed unsuitable for, among many other things, loitering, homosexuality, illegal gambling, mutilation of public records, “indecent proposal,” “black market activities (nonprofit),” “carnal knowledge” and “sodomy.” The document is available on a Web site about the suit created by the plaintiffs.

The government has neither confirmed nor disavowed that last document, and there is no indication that the criteria it listed were ever used. In the trial court, Vesper Mei, a government lawyer, said anything to do with the topic was “premature and speculative.” In its Supreme Court brief, the government said it had made no “determinations based on improper factors.”

As the turducken metaphor suggests, the law in this area is unclear. Privacy law mostly regulates disclosure of information, not gathering it. And the law gives less protection to people who are free to refuse to cooperate, even at the risk of losing their jobs, than to people compelled to cooperate regardless.

I've been through a basic government background check before and to the extent that this is what the plaintiffs face, I have a hard time believing that they'll win.  As they note themselves, they're the people who run major telescopes and launch space probes, which seem significant enough to warrant some form of background search.  The document mentioned in the story, however, is a different question.  Some of the problem categories mentioned are pretty disturbing and if the government can't disavow it they may have problems.


December 9, 2009 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 8, 2009

Harris and West-Faulcon on Ricci

Cheryl_harrisWestfaulcon2Cheryl Harris (UCLA) and Kimberly West-Faulcon (Loyola LA) have posted their new article, Reading Ricci: White(ning) Discrimination, Race-ing Test Fairness on SSRN. Here's the abstract:

This Article explores both the doctrinal and ideological mechanics of how the Supreme Court’s decision in Ricci v. DeStefano “whitens” discrimination and “races” test fairness. A close reading of the five-vote majority opinion reveals how in significant respects all claims of race discrimination are not evaluated on a level playing field. Ricci converts efforts to rectify racial inequality into white racial injury in two distinct but interrelated ways: by whitening discrimination - that is re-framing anti-discrimination law’s presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and ultimately preferred claim; and by race-ing test fairness - that is, treating efforts to use assessment tools that better measure merit and produce less racially disparate results as racially disparate treatment of whites. Ricci whitens discrimination in part by treating all forms of racial attentiveness - here the City’s assessment of the racial impact of the tests - as racial discrimination. The authors highlight that racial attentiveness and inattentiveness - as distinct from colorblindness and race-consciousness - help illustrate that the relationship between taking account of race and discrimination is more nuanced and complex. Not all racially attentive conduct is discriminatory; nor is all racially inattentive conduct non-discriminatory. The authors further consider the facts in Ricci not only through the frame of “reverse discrimination” that predominated in popular accounts, but also through the lens of a Title VII disparate impact case like that which the City of New Haven feared might have been filed by minority firefighters. The authors use statistical analysis to examine recreated promotional lists at the heart of such a lawsuit in order to evaluate the effect that the City’s failure to comply with professional standards for proper test design and test use had on this group of potential claimants as well as other white firefighters who were not part of the Ricci plaintiff class. From this vantage point, instead of identifying the most qualified candidates, New Haven’s exams unfairly and unnecessarily reproduced the fire department’s racially (and gender) skewed status quo. Nevertheless, in Ricci, the City’s efforts to ameliorate this racial imbalance were themselves treated as racially rigging the results, exemplifying how the pursuit of fair testing was race-d.

It's an important contribution to our understanding of the Court's current understanding of discrimination, and I can't wait to read it.


December 8, 2009 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Cert Granted in Clash of Protections Case

SupctIn more Supreme Court news, the Court granted cert. yesterday in a case that may have important implications for workplace discrimination law. The case is Christian Legal Society v. Martinez, 08-1371. It involves a public university (University of California, Hastings) and a student group (Christian Legal Society). The question granted cert is:  "Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints."

Hastings has a nondiscrimination policy that governs officially recognized student groups. It provides that those groups and the university "not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission, access and treatment in Hastings-sponsored programs and activities."

The CLS bylaws require students to sign a statement of religious faith in order to become members and they also bar individuals who engage in "unrepentant homosexual conduct" or those whose religions have tenets that differ from the statement of faith from becoming members or officers of the organization. While membership, voting rights, and eligibility to be an officer are limited in this way, CLS's meetings and activities are open to all students.

The Ninth Circuit summarily affirmed the district court, which held (in an unpublished opinion--available with subscription at 2006 WL 997217) that refusing to accept CLS as an official school organization was not the suppression of speech, or an infringement on anyone's free association rights. The University prohibited conduct (discrimination) that it had a compelling interest in prohibiting. That some protected expression might incidentally be burdened does not run afoul of the constitution. Additionally, the University did not mandate that those excluded by CLS be admitted; instead it put an otherwise constitutional condition on receiving the support of the university.

The Ninth Circuit's decision conflicts with a decision from the Seventh Circuit, CLS v. Walker, which involved Southern Illinois University. In that case, the school policy required student organizations to follow all federal and state laws concerning nondiscrimination and equal opportunity. Because the University could not point to any law violated (student organizations were not bound by laws that might protect people on the basis of sexual orientation and identity) and thus had not violated them, the court disregarded that ground for the University's action. Additionally, the court held that the organization could not be seen as speaking for the University and so could most likely not run afoul of its affirmative action and antidiscrimination policies that governed the University itself. The court also came out differently on the free speech and association claims, characterizing the University's actions as forcing the CLS to accept those it wanted to exclude. The Seventh Circuit characterized the prohibition as affecting not the group's conduct, but the group's advocacy or philosophy.

This case will have the potential to effect employment cases in both the public and private sector. There are many circumstances in which individual rights clash (the way that they have been constructed by courts at least) in this context--the right of one person to be free from harassment based on that person's race will clash with another's right to join an organization that advocates racial supremacy. The right of a person whose religion requires proselytizing to proselytize will clash with the rights of coworkers not of that faith to be free from harassment on the basis of their religion (or lack of religion). The right of a manager to speak about or practice his or her religion may clash with the rights we all share that prohibit establishment of religion when it happens in a public workplace. And let's not forget the right of one group not to be discriminated against (disparate treatment) when an employer tries not to discriminate against another group (disparate impact).

This case will also have important implications for the controversy surrounding the right of conscience and the ability or propriety of the federal government's ability to require faith-based organizations that receive public funds to comply with antidiscrimination rules.

It will be an important case to watch in yet another inevitable clash context.


December 8, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Supreme Court's Union Pacific Decision

Supreme Court  In Union Pacific Railroad v. Brotherhood of Locomotive Engineers, the Supreme Court addressed whether National Railroad Adjustment Board arbitration awards are subject to review for violations of due process.  As we noted in our preview, the issue arose when the NRAB concluded that it had no jurisdiction over the claim because the employees failed to provide written evidence that it met with the employer in conference.  Although the Court held in a unanimous decision that no live due process issues existed, it provided dicta to clarify the issue.  Basically, the Court stated that only Congress--not the NRAB as the board had maintained--had the power to shape the NRAB's jurisdiction and that the conference requirement was waivable, not jurisdictional.  From the syllabus:

     2. Congress authorized the Board to prescribe rules for presenting and processing claims, §153 First (v), but Congress alone controls the Board’s jurisdiction. By refusing to adjudicate the instant cases on the false premise that it lacked “jurisdiction” to hear them, the NRAB panel failed “to conform, or confine itself, to matters [Congress placed] within the scope of [NRAB] jurisdiction,” §153 First (q). Pp. 12–17.

          (a) Not all mandatory “prescriptions, however emphatic, ‘are … properly typed “jurisdictional.” ’ ” Arbaugh v. Y & H Corp. , 546 U. S. 500 . Subject-matter jurisdiction properly comprehended refers to a tribunal’s “ ‘power to hear a case,’ ” and “ ‘can never be forfeited or waived.’ ” Id. , at 514. In contrast, a “claim-processing rule” does not reduce a tribunal’s adjudicatory domain and is ordinarily “forfeited if the party asserting the rule waits too long to raise the point.” Kontrick v. Ryan , 540 U. S. 443 . For example, this Court has held nonjurisdictional and forfeitable the provision in Title VII of the Civil Rights Act of 1964 requiring complainants to file a timely discrimination charge with the Equal Employment Opportunity Commission (EEOC) before proceeding to court, Zipes v. Trans World Airlines, Inc. , 455 U. S. 385 . In contrast, the Court has reaffirmed the jurisdictional character of 28 U. S. C. §2107(a)’s time limitation for filing a notice of appeal. Bowles v. Russell , 551 U. S. 205 . Here, the requirement that parties to minor disputes, as a last chance prearbitration, attempt settlement “in conference,” is imposed on carriers and grievants alike, but satisfaction of that obligation does not condition the Board’s adjudicatory authority, which extends to “all disputes between carriers and their employees ‘growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions … ,’ ” Slocum v. Delaware, L. & W. R. Co. , 339 U. S. 239 (quoting §153 First (i)). When a CBA’s grievance procedure has not been followed, resort to the Board would ordinarily be objectionable as premature, but the conference requirement is independent of the CBA process. Rooted in §152, the RLA’s “[g]eneral duties” section, and not moored to the NRAB’s “[e]stablishment[,] … powers[,] and duties” set out in §153 First, conferencing is often informal in practice, and is no more “jurisdictional” than is the presuit resort to the EEOC held nonjurisdictional and forfeitable in Zipes. And if the conference requirement is not “jurisdictional,” then failure initially to submit proof of conferencing cannot be of that genre. And although the Carrier alleges that NRAB decisions support characterizing conferencing as jurisdictional, if the NRAB lacks authority to define its panels’ jurisdiction, surely the panels themselves lack that authority. Furthermore, NRAB panels have variously addressed the matter. Pp. 12–15.

          (b) Neither the RLA nor Circular One could plausibly be read to require, as a prerequisite to the NRAB’s exercise of jurisdiction, submission of proof of conferencing. Instructions on party submissions are claim-processing, not jurisdictional, rules. The Board itself has recognized that conferencing may not be a “question in dispute,” and when that is so, proof thereof need not accompany party submissions. It makes sense to exclude at the arbitration stage newly presented “data” supporting the employee’s grievance, 29 CFR §301(d)—evidence the carrier had no opportunity to consider prearbitration. But conferencing is not a fact bearing on the merits of a grievance. Moreover, the RLA respects the parties’ right to order for themselves the conference procedures they will follow. See 45 U. S. C. §152 Sixth. Pp. 16–17.


December 8, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, December 7, 2009

NMB Hosts Open Meeting (or was it a Hearing?) on Proposed New Voting Rule

Group hug Jeffrey Hirsch reported back in early November on the National Mediation Board's (NMB) notice of proposed rulemaking (NPRM) about changing the way union votes are counted in union representation elections under the Railway Labor Act (RLA).  I attended the NMB's open meeting today, held at the National Labor Relations Board (the NMB doesn't have enough space to accommodate large crowds).  Chairman Elizabeth Dougherty, Members Harry Hoglander and Linda Puchala, General Counsel Mary Johnson, and Associate General Counsel Kate Dowling were present.  The NMB officials didn't engage in conversation with the speakers, answer any questions, or make any comments. 

There were no real surprises from the speakers.  Labor advocates want the NMB to change the way it counts votes in union organizing campaigns and, in support of the change, referred to, among other things, the civil rights movement, Democracy, alleged "suppression" efforts by carriers, and changes in the industry, American culture, and technology.  Management advocates called for the NMB to rescind the NPRM and commented that the proposed new rule appears to be a politically motivated effort to make it easier for unions to win representation elections.  Management advocates also urged the Board to implement a decertification process if it moves ahead with the new voting rule. 

Now might be a good time to dust off Sections 2, Fourth and 2, Ninth of the RLA, along with a copy of the Administrative Procedure Act.

A list of the speakers follows.

  • Robert Siegel, Air Transport Association of America
  • Edward Wytkind, Transportation Trades Department, AFL-CIO
  • Joanna Moorhead, National Railway Labor Conference
  • John Prater, Air Line Pilots Association International
  • Robert DeLucia, Airline Industrial Relations Conference
  • Robert Roach, International Association of Machinists and Aerospace Workers
  • Jack Gallagher, Delta Air Lines
  • Carmen Parcelli, Transportation Trades Department, AFL-CIO
  • Randel Johnson, US Chamber of Commerce
  • Marianne Bicksler, Association of Flight Attendants - CWA
  • Sandy Gordon, Delta Air Lines
  • Joel Parker, Transportation Communication International Union/IAM
  • Candace Bruton, Self
  • John Conley, Transport Workers Union
  • Edward Bahmer, Self
  • David Bourne, International Brotherhood of Teamsters
  • Claude Sullivan, Ford & Harrison LLP
  • Janette Rook, Association of Flight Attendants
  • Douglas Hall, Regional Airline Association
  • Kate Brofenbrenner, Cornell University
  • Keith Borman, American Short Line and Regional Railroad Association
  • John Murphy, International Brotherhood of Teamsters
  • Roger Briton, Airline Services Council of Nat’l Air Transportation Assc.
  • David Boehm, Self
  • Donald Maliniak, Littler Mendelson, P.C.
  • Richard Shaughnessy, Communication Workers of America, Local 6001
  • David Livingston, Self
  • Samuel Berry, Self
  • Beth Graham, Self
  • Ressel Rego, International Brotherhood of Teamsters
  • Raymond LeJeunesse, National Right to Work Legal Defense Foundation, Inc.
  • Reginald Robinson, International Brotherhood of Teamsters
  • James Dolezal, International Brotherhood of Teamsters

Kevin Kraham

December 7, 2009 in Agenda 2009, Beltway Developments, Labor and Employment News, Labor Law, Labor/Employment History | Permalink | Comments (4) | TrackBack (0)

Fall 2009 Regulatory Agendas Released

Dol Eeoc The Fall 2009 regulatory agendas (click on the link: The Regulatory Plan - Current Agency Statements of Regulatory Priorities) are out for federal agencies including the Department of Labor and the EEOC. Agencies issue these priority-setting documents twice a year.

From the DOL's statement, these priorities are highlighted:
The Department of Labor's (DOL) mission is to protect workers by improving working conditions, advancing opportunities for employment, protecting retirement and health care benefits, helping employers find workers, and strengthening collective bargaining. Secretary of Labor Hilda L. Solis' vision is that the work of the Labor Department will ensure there are good jobs for everyone.

To achieve this broad vision, the Secretary has established a series of 12 specific strategic outcomes, which span across all of the Department's agencies. These outcomes are:
  • Increasing workers' incomes and narrowing wage and income inequality.
  • Securing safe and healthy workplaces, wages and overtime, particularly in high-risk industries.
  • Assuring skills and knowledge that prepare workers to succeed in a knowledge-based economy, including in high-growth and emerging industry sectors like "green" jobs.
  • Breaking down barriers to fair and diverse work places so that every worker's contribution is respected.
  • Improving health benefits and retirement security for all workers.
  • Providing work place flexibility for family and personal care-giving.
  • Facilitating return to work for workers experiencing work place injuries or illnesses who are able to work and sufficient income and medical care for those who are unable to work.
  • Income support when work is impossible or unavailable.
  • Helping workers who are in low-wage jobs or out of the labor market find a path into middle class jobs.
  • Ensuring workers have a voice in the work place.
  • Assuring that global markets are governed by fair market rules that protect vulnerable people, including women and children, and provide workers a fair share of their productivity and voice in their work lives.
  • Helping middle-class families remain in the middle class.
Critical to this vision is ensuring these outcomes achieve good jobs for everyone. This includes vulnerable workers, workers in traditionally less safe industry sectors, farmworkers, health care workers and seniors, and those facing barriers to good employment.

The Secretary has directed each agency to ensure that all priority regulatory projects support achievement of one or more of the strategic outcomes that support the good jobs for everyone vision. The DOL Fall 2009 Regulatory Plan reflects this direction.
This should sound familiar for those of us who attended this year's labor and employment law colloquium and heard Deputy Secretary Seth Harris speak. There is a lot more info for the main agencies within the DOL on their regulatory priorities, so check it out if you're interested.

The EEOC's statement is less comprehensive:

The first item in this Regulatory Plan is titled "Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act Amendments Act." On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways.

The second item in this Regulatory Plan is titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act". In March 2008, the EEOC published a Notice of Proposed Rulemaking (NPRM) concerning disparate impact under the Age Discrimination in Employment Act. 73 FR 16807 (March 31, 2008). In this NPRM, the Commission asked whether EEOC regulations should provide more information on the meaning of "reasonable factors other than age" (RFOA) and if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S. Ct. 2395 (2008), the Commission believes it is appropriate to issue a new NPRM to address the scope of the RFOA defense. Accordingly, before finalizing its regulations concerning disparate impact under the ADEA, the Commission intends to publish a new NPRM proposing to amend its regulations concerning RFOA.

Hat tip: Pat Schaeffer


December 7, 2009 in Beltway Developments | Permalink | Comments (1) | TrackBack (0)

Michaels Confirmed as OSHA Adminstrator


 Last week, the Senate confirmed David Michaels as the OSHA Administrator.  We gave a brief bio when he was nominated, which looks like he'll probably be making some changes at the agency.  Whether he has any funds to do so is another question.  Either way, it's good to finally have someone at the helm.






December 7, 2009 in Workplace Safety | Permalink | Comments (0) | TrackBack (0)

Aaron Zelinsky on Healthcare CEO Salaries

Az Readers may recall a prior post on Aaron Zelinsky's proposal to curb excessive executive compensation by making it non-tax-deductible.   He's just posted on the Huffington in which he discusses the Senate Healthcare Bill, which would disallow deductions for salaries over $500,000 paid to health insurance CEOs under 162(m). He argues that there is no persuasive rationale for targeting health insurance CEOs in particular while allowing every other industry to continue deducting an effectively unlimited salary.  See Political Grandstanding: Excessive Compensation and the Health Care Bill


December 7, 2009 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Sunday, December 6, 2009

Milwaukee Sheriff's Religious Presentations to Deputies Violated Establishment Clause

Car_police Interesting public employment case. Here are the facts of Milwaukee Deputy Sheriffs' Association v. Clarke, 08-1515 (7th Cir. Dec. 4, 2009):

Despite complaints from other employees, the [religious group, the] Centurions, made presentations during 16 roll calls between May 9 and May 16, 2006, during which they distributed the flyers and books featured at the leadership conference.

 The union argued that the employer's actions, allowing the religious group to make religious presentations during mandatory employee meetings to Sheriff deputies, had the purpose or effect of advancing religion.The union sued the Milwaukee County Sheriff under Section 1983, alleging that the religious meeting violated their rights under the Establishment Clause of the First Amendment.

The Seventh Circuit affirmed the district court and unanimously held:

Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause . . .

In this case, the Centurions gave a heavily Christian-focused presentation at a mandatory
conference for government employees, and the Sheriff subsequently invited them to present at mandatory roll calls during work hours, granting them unfiltered access to a captive audience of subordinates. At each roll call, they were personally introduced by the Sheriff’s command staff and were permitted to distribute additional Christian-focused literature. Even more telling was the Sheriff’s refusal to cease the presentations after some of the deputies complained of the Centurions’ proselytizing. He took no steps to disentangle himself or the Department from any of the religious message . . . and his actions, at the least, appeared to place the Centurions’ in the same category as the other “partnering” organizations, like Johnson’s Bike Company—all of whom presumably received the Department’s approval.

I agree with the court that, "it would be difficult to interpret the Sheriff’s actions as anything other than endorsement." 

One last point. The court also considered the free speech rights of the religious group to speak to the Deputies under a First Amendment free speech forum analysis.  On this ground, the court concluded:

The Sheriff is mistaken that the department has created a forum of any kind and so, the Centurion’s desire to access the deputies present at the leadership conference and roll calls does not trigger a Free Speech forum analysis.  The Supreme Court recognizes a distinction
between claims asserting access to a forum and claims asserting access to a captive audience. Minn. State Bd. for Cmty Coll. v. Knight, 465 U.S. 271, 286 (1984).

In all, this case is a welcome reminder that public places of employment may not purposefully expose their employees to religious proselytizing, no matter how benign the purposes.


December 6, 2009 in Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Call for Papers: Symposium: Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications

Conf Joe Seiner sends along this call for papers from Nancy Welsh at Penn State Law:

On Friday, March 26, 2010, the Penn State Law Review will hold a symposium addressing the Supreme Court’s recent decision in Ashcroft v. Iqbal.  The symposium is entitled Reflections on Iqbal—Discerning Its Rule, Grappling With Its Implications and will feature panels addressing the following topics:

·    Iqbal’s implications for the role of the courts and judges in providing American society with both the opportunity for redress of harms and a common law-based approach to the development of law.

·    The majority’s reference to purposeful discrimination and what it signals about contemporary understandings of race in America.

·    Iqbal’s implications for constitutional tort litigation, including the decision’s potential impact on supervisory liability, qualified immunity, and the behavior of agency officials operating under adverse conditions.

Presenters currently include: Hon. Anthony Scirica (Chief Judge, Third Circuit), Hon. D. Brooks Smith (Third Circuit), Mark Brown (Capital), Ray Campbell (Penn State), Gary Gildin (Penn State), Ramzi Kassem (CUNY), Kit Kinports (Penn State), Jim Pfander (Northwestern), Jeff Rachlinski (Cornell), Victor Romero (Penn State), Jean Sternlight (UNLV), Shoba Wadhia (Penn State), and Nancy Welsh (Penn State). 

More detailed information is available here.  Presented papers will be published in a Symposium Issue of the Penn State Law Review.  Brief abstracts of the papers will be posted on the Law Review’s online companion, Penn Statim, by December 16, 2009.

The Penn State Law Review issues this Call for Papers for submissions regarding Iqbal and particularly invites submissions regarding the topics to be covered at the Iqbal symposium and responding to the abstracts that will be posted on Penn Statim.  Submissions will be accepted, however, that are grounded in other areas of law relevant to understanding the reasoning in Iqbal (e.g., security, employment, antitrust, etc.), as well as other academic disciplines.  Papers submitted in response to this Call should be of essay length and type and should be no longer than 5,000 words, including footnotes. 

Through its online companion, the Penn State Law Review hopes to encourage and host a scholarly online dialogue regarding Iqbal and its implications.  Therefore, after conducting an editorial review process, the Penn Statim will select and begin posting papers on December 17, 2009, with selections and postings to continue on an ongoing basis.  At least one of the papers submitted in response to this Call will be selected for hard-copy publication in the Summer Issue of the Penn State Law Review.  The author of any paper selected for such hard-copy publication will be invited (but not required) to expand upon his or her essay-length piece.

The deadline for submissions in response to this Call is Friday, April 16, 2010.  All submissions must be sent to  All submissions must be in English and comply with Bluebook formatting rules. 


December 6, 2009 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)