March 12, 2010
Recent Issue of SSRN Abstracting Journal: Economic Perspectives on Employment & Labor Law
The most recent issue of the SSRN abstracting journal, Economic Perspectives on Employment and Labor Law is out and includes another great article by friend of the blog, David Yamada. Here's the table of contents:
Program Take-Up Among CalWORKs Leavers: Medi-Cal, Food Stamps, and the EITC: An Evaluation of Participation in Work-Support Programs by CalWORKs Leavers
Jacob Alex Klerman, The RAND Corporation
Amy G. Cox, RAND Corporation - Santa Monica CA Offices
V. Joseph Hotz, Duke University, National Bureau of Economic Research (NBER), Institute for the Study of Labor (IZA)
Charles Mullins, affiliation not provided to SSRN
The Looming Twenty-First Century Generation Gap: Economic Challenges Facing Younger Workers
David C. Yamada, Suffolk University Law School
Innovation, Labour Demand and Wages in Poland: Some Introductory Results Using Micro-macro Data
Mateusz Walewski, CASE
The Differential Valuation of Women's Work: A New Look at the Gender Gap in Lawyers' Incomes
Joyce Sterling, University of Denver - Sturm College of Law
Nancy Reichman, affiliation not provided to SSRN
Ronit Dinovitzer, University of Toronto
Choice of Law and Employee Restrictive Covenants: An American Perspective
Gillian L. L. Lester, University of California, Berkeley - School of Law
Elizabeth Ryan, affiliation not provided to SSRN
Family Job Search, Wage Bargaining, and Optimal Unemployment Insurance
Susanne Ek, affiliation not provided to SSRN
Bertil Holmlund, Uppsala University - Department of Economics, CESifo (Center for Economic Studies and Ifo Institute for Economic Research), Institute for the Study of Labor (IZA)
The Fair Work Act 2009 (Cth) and the Right to Strike
Shae McCrystal, University of Sydney - Faculty of Law
The Effect of Employment Protection on Worker Effort: Evidence from Public Schooling
Brian Jacob, Harvard University - John F. Kennedy School of Government, National Bureau of Economic Research (NBER)
Exhibit A: Federal Courts Don't Understand Labor Law
My good friend, Rick Garnett (Notre Dame) has posted on Prawfsblawg an entry entited: The "Institutional" First Amendment. In the post, he discusses the Ninth Circuit's recent decision in McDermott v. Ampersand Publishing (9th Cir. March 11, 2009). The Central District of California court had ruled that "a significant risk of First Amendment violation" would arise if a newspaper was forced by the NLRB through a 10(j) injunction to reinstate employees that the newspaper had fired for certain union-related activities.
Amazingly, the Ninth Circuit agreed in a 2-1 opinion. The majority observed:
It is clear that the First Amendment erects a barrier against government interference with a newspaper’s exercise of editorial control over its content. . . .
The union organizing campaign arose in the wake of an extended dispute between the News-Press management and newsroom employees regarding allegedly biased reporting and newspaper content. . . .
No matter how laudable the goals of the fired reporters in promoting the Union to, as the ALJ put it, “restore journalistic integrity,” the risk that granting an injunction will infringe the News-Press’s right to publish what it pleases is inescapable. . . .
Rick writes that "this decision is intriguing to me, because it would seem to have interesting implications for the debate about the applicability of non-discrimination laws and other general employment regulations to religious institutions." True enough. He also welcomed other thoughts too - so here's mine - it is dead wrong under labor law and again illustrates the federal courts lack of knowledge about how federal labor law works.
It is dead wrong simply because the underlying unfair labor practice (ULP) charge is based on Section 8(a)(3) for discriminatory, union-based firing. The injunction being sought by the NLRB under Section 10(j) is to immediately enjoin that violation of the law.
The firing of the newspaper workers is not based on what they would publish, but was found to be based on their union conduct. The content of their speech has nothing to do with it. Conduct can be regulated under the NLRA without running afoul of anyone's speech or press rights. Let me cite the dissenting opinion in this regard:
The injunction here only seeks reinstatement for terminated employees. Period. It does not enjoin speech. Rather, the injunction addresses troublesome, retaliatory terminations and disciplinary actions the News-Press took only after union organizing began.
Religion, btw, is a wholly other matter because the NLRA generally does not apply to religious institutions. See Catholic Bishops Conference (U.S. 1978).
Truly unbelievable. This one should head directly to en banc and be overturned.
March 11, 2010
The 2010 Retirement Confidence Survey: Confidence Stabilizing, But Preparations Continue to Erode | EBRI
20TH ANNUAL RCS: The 2010 Retirement Confidence Survey—the 20th annual wave of this survey—finds that the record-low confidence levels measured during the past two years of economic decline appear to have bottomed out. The percentage of workers very confident about having enough money for a comfortable retirement has stabilized at 16 percent, which is statistically equivalent to the 20-year low of 13 percent measured in 2009 (Fig. 1, pg. 7). Retiree confidence about having a financially secure retirement has also stabilized, with 19 percent saying now they are very confident (statistically equivalent to the 20 percent measured in 2009) (Fig. 2, pg. 8).
People may not be very confident, and it looks like they're right not to be. They're not saving at a particularly high rate according to the annual EBRI survey out today. Fewer workers have saved for retirement, fewer are saving, and more people have no savings at all. In fact, 27% of those surveyed said that they had less than $1,000 in savings, and over half of workers have less than $25,000 in savings. The survey excludes the value of primary homes and defined benefit pension plans, but with the current housing market, and relative dearth of those plans, it's not likely that lots of these folks are really going to be ready for retirement.
Leong on Judicial Erasure of Mixed-Race Discrimination
Nancy Leong (starting at William & Mary Law this Fall) has just posted on SSRN her forthcoming piece in the American University Law Review: Judicial Erasure of Mixed-Race Discrimination.
Here is the abstract:
Jurisprudential remedies for racial discrimination presume the existence of clear categories. Indeed, Carolene Products’ classic allusion to “discrete and insular minorities” evokes racial groups that are readily identified and defined. Yet this reliance on categories renders antidiscrimination jurisprudence inhospitable to claims brought by individuals identified as multiracial and discriminated against on that basis. By addressing racial discrimination exclusively through categories, courts have lost sight of the fact that the purpose of antidiscrimination law is not to protect individuals from discrimination based on membership in recognized categories, but rather to protect individuals from the harms inflicted by racism.
This Article explores the tension between the reliance of race discrimination jurisprudence on discrete categories and the reality of discrimination against individuals whose racial identities transcend such categories. Overwhelming evidence reveals persistent animus directed at individuals perceived as racially mixed, yet courts virtually never recognize claims of discrimination brought by individuals identified as multiracial. After surveying the existing case law, this Article concludes that courts tend to reformulate claims of multiracial discrimination as claims of monoracial discrimination in order to comport with the established categorical framework of antidiscrimination jurisprudence.
Channeling plaintiffs into monoracial categories causes a variety of harms. It deprives plaintiffs of the opportunity to vindicate themselves in court based on the specific type of discrimination they suffered. It creates obstacles for plaintiffs identified and discriminated against as multiracial by distancing their claims from a body of precedent that recognizes only monoracial discrimination. And it entrenches the prevailing racial categories, impeding progress toward a more nuanced and fluid understanding of race.
To remedy the harms caused by these jurisprudential shortcomings, this Article recommends that antidiscrimination jurisprudence focus more explicitly on the perspective of the discriminator. Rather than implicitly requiring plaintiffs to show that they were treated worse than individuals outside their racial category, courts should simply require that plaintiffs show that they were treated worse than individuals whom the discriminator viewed as racially different. This approach is fully compatible with the relevant constitutional, statutory, and regulatory provisions, and would supplement rather than contradict existing category-based jurisprudence. Ultimately, it would render antidiscrimination law equally accessible for all individuals, thereby better fulfilling the antiracist goals underlying the antidiscrimination regime.
Sounds like a wonderful and innovative idea to an intractable problem within federal and state employment discrimination law. Let's hope members of the EEOC and judiciary become familiar with this piece.
And welcome to the Academy, Nancy!
Wagner Competition Begins
Best of luck to all competing in New York Law School's 34th Annual Robert F. Wagner National Labor and Employment Law Moot Court Competition. The competition begins today.
Tucker & Fudge: There IS a Constitutional Right to Strike
Eric Tucker (York - Osgoode Hall) and Judy Fudge (Victoria) have just posted on SSRN their article (forthcoming Canadian Labour and Employment L.J.) The Freedom to Strike in Canada: A Brief Legal History. Here's the abstract:
In the B.C. Health Services Subsector case  2 S.C.R. 391, the Supreme Court Canada relied, in part, on the history of Canadian labour law to support the conclusion that collective bargaining was an activity that was protected under the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Thus, it is likely that the Court will consider Canadian labour law history to determine whether or not constitutional protection also extends to the freedom to strike. The two principal purposes of this paper are: 1) to provide an analytic framework for approaching the history of the right to strike; and 2) to sketch out the contours of that history. First, we claim that it is only possible to understand the legal “right” to strike in the labour relations context in relation to the freedom to associate and the freedom to bargain collectively. Second, the paper draws upon W.N. Hohfeld’s typology of jural relations in order to analyze and to evaluate the rules that shape the legal relationships between individuals and social groups. Third, we map the complex and historically evolving legal relations governing the freedom of association, collective bargaining and striking during successive regimes of industrial legality in Canada.
March 10, 2010
11th Circuit Orders Rehearing for another Sex Harassment Case
You may remember that the Eleventh Circuit issued a somewhat surprising decision recently on rehearing in a sexual harassment case, (noted here). That case involved a workplace saturated with graphic discussions of sex and derogatory language about women, although the plaintiff was never called names. That decision was surprising, particularly having following on the heels of a decision by a panel that found sexual touching of and suggestive language by a male supervisor directed at two male subordinates not to be harassment, granting summary judgment in favor of the employer (see the article by Alyson Palmer here). The panel had reversed summary judgment on retaliation and remanded for further proceedings.
Well, the Eleventh Circuit has now granted rehearing in that case, Corbitt v. Home Depot. After the C.H. Reeves case, I would foresee a reversal here on the sexual harrasment issue. The panel had issued one opinion last July (573 F.3d 1223), which it vacated and modified some of the language, but not the result, in December (589 F.3d 1136). The decision contained a dissent on the sexual harassment issue, saying essentially that had the harassment been by a male supervisor of female subordinates, it would have survived summary judgment.
March 9, 2010
A Case of Ironic Discrimination, Don't You Think?
I think I will let the Milwaukee Journal Sentinel piece speak for itself:
Johnny Kimble spent a career helping others address employment discrimination as a staffer and supervisor at the state's Equal Rights Division in Milwaukee.
But it didn't save him from becoming a victim of illegal race and gender bias within that very agency, a federal judge has found.
"I guess it's ironic; I'd been protecting rights of other people and couldn't protect my own," Kimble said.
Late last month, a federal judge in Milwaukee ruled that Kimble, who is African-American, had been improperly denied years of raises because of his race and gender. The judge found the state Department of Workforce Development and the former administrator of the Equal Rights Division, J. Sheehan Donoghue, guilty of discrimination.
"I feel vindicated," said Kimble, 61, who retired in 2005 after 33 years of service. Now he awaits either a settlement, or further litigation, regarding the level of back pay and damages he is due.
Bill Cosh, a spokesman for the state Department of Justice, said attorneys for the state are "considering whether an appeal is appropriate."
U.S. District Judge Lynn Adelman heard the case in July. On Feb. 25, he released a 22-page ruling that found Donoghue essentially ignored Kimble for the 12 years she served as administrator; though he was a member of her management team, she never met with him one-on-one, not even to award the single $300 bonus he received during that time.
On some occasions, however, she blamed him for problems that were actually associated with the Madison office. Kimble was section chief in Milwaukee for 29 years.
Meanwhile, Donoghue gave Kimble's peers base pay raises, and upped her executive assistant's pay to nearly what Kimble earned for supervising the Milwaukee office of the Equal Rights Division, which included about 18 investigators and support staff. She gave out the raises without consulting the workers' evaluations or direct supervisors.
Lot of possible poignant and sarcastic comments could be made on this one, but I think I will leave it with just an observation: employment discrimination can happen anywhere, anytime. No workplace is immune.
Secunda on the Story of Pickering
Our own Paul Secunda (Marquette) is at it again. After posting his most recent piece on the captive-audience speech issue, he's adding to his broad scholarship on public employees' free speech rights. The piece is "The Story of Pickering v. Bd. of Education: Unconstitutional Conditions and Public Employment," which will appear as a chapter in the upcoming First Amendment Law Stories book. The abstract:
The story of Pickering v. Bd. of Education, a foundational case in public employment law, prominently foreshadows more generally the coming prominence of the doctrine of unconstitutional conditions in constitutional law. Under that doctrine, the Supreme Court limits a government actor, like a government employer, from being able to condition governmental benefits, like public employment, on the basis of individuals forfeiting their constitutional rights. It would thus seem to follow that a public employee should not have to sacrifice constitutionally-protected rights in order to enjoy the benefits and privileges of public employment. Yet, today, that is far from the actual case.
So why have First Amendment public employee speech rights, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, suddenly diminished in recent years? I want to suggest in this contribution to First Amendment Law Stories that a certain jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Under the subsidy school of thought, in contexts as different as abortion funding to the provision of tax exemptions, the unconstitutional conditions doctrine has become largely toothless, as government actors can simply compel a given result by saying they are doing nothing but subsidizing (or not subsidizing) a right a citizen or public employee already has under the Constitution.
In order to more concretely illustrate the genesis of the unconstitutional conditions doctrine, and its recent distortions, this Chapter returns to an in-depth exploration of the case that started it all: Pickering v. Bd. of Education. Although the Court decided this case in Marvin Pickering’s favor, the resulting framework has, over the years, been interpreted by the Supreme Court in a manner that significantly limits public employee free speech rights.
Paul has become the go-to person on employee free speech issues, so definitely check it out.
March 8, 2010
Supreme Court Takes Public Employee Informational Privacy Case
The United States Supreme Court granted cert today in the public employee privacy case of NASA v. Nelson, No. 09-530 (petition for cert here). The case will consider whether NASA, a federal agency, violated the informational privacy rights of employees, who worked in non-sensitive contract jobs, by asking certain invasive questions during background investigations.
General Kagan, for the government, filed the petition for cert and is asking the Court to overturn the 9th Circuit decision which directed a district court to issue a preliminary injunction on behalf of contract workers at NASA's Jet Propulsion Laboratory (JPL) operated by the California Institute of Technology under a contract with the federal government. The General maintains that the privacy expectations of the employees are minimal because they have are in the government employment context, these are standard background forms that the government is using, and the Privacy Act of 1974 protects this information from disclosure to the public.
The case was originally brought in 2007 by twenty-eight scientists and engineers employed as contractors at JPL on behalf of a potential class of 9,000 employees that NASA classifies as low-risk employees. Questions included in the background check ask about “any treatment or counseling” for illegal drug use, and forms issued to references seek “adverse information” about the workers' employment, residence, and activities regarding violations of the law, financial integrity, abuse of alcohol or drugs, mental or emotional stability, general behavior, and “other matters.”
This will be an interesting case for a number of reasons. First, it does not squarely fit into either the public employee drug testing cases (Von Raab & Skinner), nor does it focuses on a public employee's privacy rights in their physical belongings (Ortega). Rather, it focuses on an area of public employment constitutional law that has received less attention: the informational privacy rights of these employees. The Court has "hinted" at a constitutional right to informational privacy in two cases in the 1970s and then "never said another word about it." Judge Kozinski is his dissent from denial of rehearing en banc (citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)).
Normally, because of the fact that the government is acting in its employer capacity, it would have more latitude to infringe on its employee's rights under the Fourth Amendment. This means that a balancing test is most appropriate. Such a test would balance the need of the employee for informational privacy against the needs of the government employer. In this case, it would appear that employees are seeking to protect confidential and potentially embarrassing personal information against the government's need to obtain information to protect and secure its federal facilities.
I do not know how such a balance will be made in this case (or even if one will be made (Judge Posner in the 7th Circuit said a "search" hasn't even occurred under these circumstances)), though one thing that appears to favor the workers is that they are employed in low-risk, non-sensitive positions. This clearly distinguishes Nelson v. NASA from the Custom Agents who were required to undergo drug testing in Von Raab. Finally, one might say that the legitimate expectation to privacy for employees in the post-9/11 environment might lead the Court to conclude that whatever privacy expectations they have are minimal.
My early prediction: the Supreme Court will overturn the 9th Circuit. I suspect the decision to recognize a right to informational privacy under the 4th Amdt, but to suggest in this context that the right is only minimally burdened by the government's background check documents.
Paycheck Fairness Act up on Senate HELP Committee Agenda this Week
On this week's agenda for the Senate Health, Education, Labor, and Pensions Committee is a full committee hearing entitled, A Fair Share for All: Pay Equity in the New American Workplace. The hearing is scheduled for Thursday morning, at 10 Eastern time. You may recall that as part of the legislation reacting to the Supreme Court's Ledbetter decision was the Paycheck Fairness Act, which passed the House in August of 2008 (noted here). The bill was not passed by the Senate at that time, but it's back on the agenda now. While the Lily Ledbetter Act focused on the statute of limitations and reversing the Supreme Court's decision, the Paycheck Fairness Act focuses on amending the Equal Pay act and providing greater remedies for gender pay discrimination.
Hat tip: Pat Schaeffer