Saturday, March 27, 2010

Becker, Feldblum, and Others Given Recess Appointments

White house As predicted, President Obama made several recess appointments today, including Craig Becker to the NLRB.  What was interesting was that Obama recessed only the two Democratic nominees to the NLRB, but recessed two Democrats (including Chai Feldblum of Georgetown) and one Republican to the EEOC.  That could be the result of Obama's need to placate increasing irritable labor leaders, genuine frustration with Republican tactics on Becker's nomination, or a combination of both (not to mention other factors).  One hint comes from the White House announcement of the appointments, including the statement:

The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.

Clearly, the political fireworks will continue until--at a minimum--the November elections.  The bigger question is how this fits in with labor and employment reform efforts, such as EFCA or ENDA.  I don't know if variations on those bills were possible this year anyway, but I wonder whether today's action indicates that the White House will try to jam some bills through or whether this is a bone to throw to labor in lieu of legislative action this year.


March 27, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Friday, March 26, 2010

Fall Seton Hall Forum Call for Proposals

Building on the successes of the last four years, the Fifth Annual Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents.


For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.


The event will be held at Seton Hall Law School, October 22-23, 2010 (we have moved it back to the fall semester).  As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere.  Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.  

Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, May 3, 2010.

Proposals should be submitted to:

Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or 

Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by October 1, 2010.

For further information, including past participants, visit our Forum website: 



March 26, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Rothstein Elected to ALI

Rothstein We posted yesterday on Paul Secunda's election to the American Law Institute.  I did not know it at the time, but Laura Rothstein (Louisville - Brandeis) also has been elected to ALI.  Laura has worked on disability law for more than three decades.  Congrats, Laura!  Hat tip: Paul.


March 25, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Looking More Likely Becker Will Be Recessed Appointed to the NLRB

Nlrblogo Well, I for one, hope so. Not only because he is eminently qualified for the position, but because his confirmation process indicated that there was nothing fair or impartial about the way John McCain and his fellow Republicans handled the process.  As many have pointed out, a dysfunctional NLRB serves the interests of employers just fine.

Indeed, perhaps Obama should make three recess appointments, because it is unclear whether the other two nominees (Senate Republican staffer Brian Hayes and Buffalo Democratic labor lawyer Mark Pearce) will be able to get an up-or-down vote in the Senate through the normal procedure. 

Here is the Blog of the Legal Times on the current situation:

As members of Congress prepare to head out of town for a two-week break, pro- and anti-union forces are readying for a possible recess appointment of labor lawyer Craig Becker to the National Labor Relations Board.

Republican senators sent a letter to President Barack Obama today asking him not to use his authority to appoint Becker.

“To do so would bypass the advice and consent traditions of the Senate,” reads the letter, which was organized by Sens. Orrin Hatch (R-Utah) and John McCain (R-Ariz.). It goes on, “We oppose Mr. Becker’s recess appointment because of his extensive, highly controversial writings, and his entire legal and scholarly career, all of which indicate that he could not be viewed as impartial, unbiased, or objective in deciding cases before this quasi-judicial agency.” .  . . .

Pot calling the kettle black, anyone?

On the other side are union-backed groups that have supported Becker since Obama nominated him 11 months ago. Kimberly Brown, executive director of American Rights at Work, said in a statement this week that Obama should “use the same power of recess appointment exercised by his five predecessors — including George W. Bush — and appoint his nominees to the National Labor Relations Board over the Easter congressional recess. America’s working families, struggling to make ends meet in the worst economy since the Great Depression, deserve no less.”

In legal terms, Hatch and McCain come to this point in this political drama with extremely unclean hands, having decided even after the unprecedented step of having a confirmation hearing that Becker could not be impartial, his protestations to the contrary notwithstanding.  The fact that someone writes innovative scholarly opinions does not go to how that person will be in that government office. Those are the exact people we want on both sides thinking long and hard about what ails American labor law.  What is more important is whether the person will support the NLRB as an institution and decide cases in line with nearly 75 years of Board law and policies. 

Look, if you abuse the advice and consent process in the Senate, you can't be expected to be taken seriously when you say to the President: "hey, you shouldn't use your recess appointment power."  Even Chief Justice Roberts asked during oral argument in New Process Steel yesterday why didn't the President just use his recess power given the current crisis at the NLRB? Why indeed.

President Obama should and he should do so by appointing all three nominees so that the full Board can get on with its important work after more than two years and decide the critical issues that arise in the workplace on a daily basis.  Senate Republicans will then be on notice that there is a price to be paid for their shenanigans and obstruction and losing an election decisively means you don't always get to have your way with these things.


March 25, 2010 in Beltway Developments, Labor Law | Permalink | Comments (1) | TrackBack (1)

ABA Section on Labor and Employment Law Ethics Committee Meeting

Ethics The ABA Section on Labor and Employment Law Ethics and Professional Responsibility Committee will be meeting this weekend in Coronado California for a midwinter meeting.  Among myriad other speakers will be:


  • Gwen Handelman (Nova Southeastern), moderating a panel on Attorney-Client Privilege in Employee Benefits Practice: Who's Your Client and When?
  • Michael Green (Texas Wesleyan), moderating a panel on The Allure of Electronic Communications: Forgetting Your Professional Responsibilities When Involved with Email, Facebook, Twitter, and Blogging.
  • Ruben Garcia (Cal Western), moderating a panel on The Role of Attorneys in Policing Professionalism.

March 25, 2010 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Secunda & Oborne: Webinar on State Captive Audience Legislation

Secunda Oborne Paul Secunda (Marquette) and Scott Oborne (Jackson Lewis - Portland) are teaming up to offer an ALI-ABA webinar on State Captive Audience Legislation, Union Organizing Campaigns, and NLRA Preemption.  Here's a summary of the program:

"[C]aptive audience meetings” ... are mandatory meetings the primary purpose of which is to communicate employer opinions on religious or political matters.  Several state legislatures have recently debated whether such practices should be banned, and Oregon has recently done so. Are such state laws preempted by the National Labor Relations Act, since they could have a substantial impact on union-organizing campaigns?

Find out how various state laws--proposed and enacted--could penalize employers for forcing their employees to attend “captive audience meetings”. Will such laws be preempted by the NLRA, since they could potentially have a substantial impact on union-organizing campaigns?

This course will cover the various aspects of federal preemption in this area of law including:

  • The various arguments being advanced by both sides of this federal preemption debate.
  • The implications that this dispute could have on the enforceability of state captive audience laws nationwide.
  • The future of union organizing in the face of these developments.


March 25, 2010 in Faculty News, Labor Law | Permalink | Comments (0) | TrackBack (0)

California Employment Law

Kadue Defense firm Seyfarth Shaw has published the 2010 edition of Cal-Peculiarities: How California Employment Law is Different, which is available by request from the firm.  Here's an excerpt from a promotional summary:

A critical reference for any employer doing business in the Golden State, Peculiarities examines the ever-growing thicket of employment laws and regulations that make California “the most burdensome state” to operate a business, as noted by author David Kadue [photo left], an employment attorney in Seyfarth Shaw’s Los Angeles office.

At over 200 pages, the book covers dozens of areas of employment law issues – from discrimination and harassment claims to privacy protection, family leave policies, third-party injury, independent contractor status, non-competes and of course, wage-and-hour disputes.

Also addressed are more exotic topics in California workplace law, such as lactation accommodation and time off allowed for addicts and certain volunteer workers; HIV and drug testing; and excessive cell phone and BlackBerry usage. Peculiarities looks at recent court developments, such as the limiting of the protection offered by the state’s Good Samaritan law, as well as employee compensation as a class for time spent undergoing security checks. And, this being California, there is also a chapter devoted to agricultural workers.


March 25, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Moffat v. Noncompetes

Moffat Viva Moffat (Denver) has just posted on SSRN her article (forthcoming William & MaryL. Rev.) The Wrong Tool for the Job: The IP Problem with Non-Competition Agreements.  Here's the abstract:

In this article, I argue that non-competition agreements should be unenforceable. Although various attacks have been launched at non-competes, most of them have been aimed at reforming the doctrine rather than eliminating enforcement of the agreements entirely. This is because the justifications for non-competes have been left mostly unchallenged, and I undertake that task here.

The most problematic and least examined of these is the IP justification: in an increasingly knowledge-based economy, many argue that non-competes are necessary to protect trade secrets and other intangibles or that non-competes provide an incentive for invention and investment, a classic IP justification. Though rhetorically compelling, perhaps, this justification is flawed. First, trade secret and other IP protections are intentionally limited to provide a certain amount of, but not too much, protection. Allowing enforcement of non-competes in order to protect IP interferes with the contours of IP protection. Second, even to the extent that IP law is insufficient – that is, unintentionally limited – non-competes are not the right tool for the IP job. A prohibition on the enforcement of non-competes would thus serve a channeling function, directing efforts to protect intangibles to the IP regimes and encouraging the development of the appropriate IP balance (which is, of course, a work in progress).

Other justifications for non-competes are similarly weak. The general claim of a “business necessity” to guard “protectable interests” is often cited with no evidence to back it up. When there is something more put forth, it collapses into another version of the IP justification and is similarly problematic. Finally, the freedom of contract justification is also rhetorically compelling but at odds with the realities of employment contracting. Combined with the classic critiques of non-competes, the weakness of the justifications for the use of non-competes leads to the conclusion that they should simply be unenforceable.


March 25, 2010 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Holds Mixed Motives Available in Title VII Retaliation Case

GavelThe Fifth Circuit decided an important retaliation case yesterday. In Smith v. Xerox, the court held that a plaintiff could use a mixed motives theory in a retaliation case under Title VII.

Kim Smith won a jury verdict against Xerox for her claim that she was fired for filing an EEOC charge. Smith had supported Xerox dealers, and had been a great employee until her territory was changed without a corresponding change in her sales goals. She was disciplined for her failure to meet these goals, with an eye towards further discipline after a set period of probation if her performance didn't improve. She filed her charge before that period expired, and it appears that Xerox began termination proceedings within seven days of that, well before the probationary period ended. Xerox also failed to follow its own procedures in connection with the probation after that point. At trial, Smith requested and the jury was given a mixed motives instruction. The jury found that Xerox was motivated to terminate her in part by the EEOC charge and also found that it would not have made the same termination decision had she not filed the charge. She was awarded compensatory and punitive damages.

While the case was on appeal, the Supreme Court's decision in Gross was issued, and Xerox argued that the case controlled, making the mixed motives theory unavailable in retaliation cases. The Fifth Circuit disagreed. The court noted that as was significant in Gross, the amendment to Title VII that added the "motivating factor" language, codifying that part of Price Waterhouse, did not refer to retaliation. However, the court noted that Price Waterhouse interpreted what the terms "because of" meant in Title VII. The Court in Gross interpreted the same term, but in the ADEA. The Fifth Circuit felt bound to follow the line of cases interpreting the language in Title VII and likewise felt bound to interpret the "because of" in the retaliation provision the same way it was interpreted for the substantive provision. And following the logic of the Court in Desert Palace v. Costa, the Fifth Circuit held that there was no need for direct evidence of retaliation to shift the burden.

The Fifth Circuit thus upheld the verdict of retaliation, but reversed the award of punitive damages, finding that there was not sufficient evidence to show that her managers acted with malice or reckless indifference that the termination would violate Title VII.

The Fifth Circuit's analysis harmonizes Gross and Price Waterhouse in an interesting way. It seems that many of us have taken for granted that Gross would control the motive question for retaliation questions, but that does create a real problem within Title VII, given the fact that the Court in Price Waterhouse had interpreted what "because of" means in Title VII, not limiting its analysis to the substantive provision. Drawing the line at the borders of the ADEA or at the very least, the borders of Title VII is a middle ground. We'll have to see whether the other circuits or potentially the Supreme Court agree.


March 25, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

KBR Withdraws Cert. Petition

JljWe reported in early February that KBR/Halliburton had filed a cert petition in the Jones case, which, you may recall, involved allegations by employee Jamie Leigh Jones that she was drugged and raped by several of her coworkers in her quarters in Iraq. According to Scotusblog, KBR has now withdrawn that petition.

A spokesperson for KBR said that the company did not want to risk running afoul of the Franken Amendment, which precludes a defense contractor (for certain contracts) from receiving 2010 Defense Appropriation funds if the contractor enforces an existing arbitration agreement that would require the arbitration of claims under Title VII of the Civil Rights Act of 1964 or any tort claim related to or arising out of sexual assault or harassment. KBR had insisted in its petition that the amendment did not affect this case, but apparently has now changed its mind out of concern that at least one of its current federal contracts might be jeopardized by asking the Supreme Court to force Jones to arbitrate her claims. So at least some of Jones' claims will now go forward at the trial court.


March 24, 2010 in Arbitration, Employment Discrimination, Workplace Safety | Permalink | Comments (0) | TrackBack (0)

CLE on Plausibility in Labor and Employment Cases

AbaThe ABA Section of Labor and Employment Law and Center for Continuing Legal Education are presenting a CLE program (teleconference and live audio webcast) on the effect of Iqbal and Twombly on labor and employment cases. According to the program description:

The pleading standard for a viable cause of action, as defined by the Federal Rules of Civil Procedure, requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”  In 2007, the United States Supreme Court’s Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007),decision re-examined the pleading standard and rejected Conley v. Gibson’s “no set of facts” test. 

In 2009, the Supreme Court expanded Twombly’s reach in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), holding Rule 8’s newly-crafted pleading standard applies to all civil cases. No matter your focus and no matter who your client is, the Court’s decision in Iqbal marks an abrupt shift in pleading standards, and that shift has affected all labor and employment cases.  Hear from our panel of employment law experts, who will cover such critical areas as: 

  • The impact of Iqbal on labor and employment law cases to date;
  • How labor and employment practitioners are adjusting to the new pleading standard;
  • What the future trend in labor and employment adjudications holds; and
  • The proposed legislation to overturn Iqbal.

Panelists include Suja Thomas (Illinois), Josh Civin (NAACP LDF), and Jonathan Youngwood (Simpson & Thatcher), and the moderator is Samuel Miller (Outten & Golden). It should be an interesting discussion.


March 24, 2010 in Faculty Presentations | Permalink | Comments (0) | TrackBack (0)

Secunda Elected to ALI

Secunda Many congratulations to Paul Secunda, who has been elected to the American Law Institute.  If any other readers of Workplace Prof Blog have been similarly elected, let me know so I can post the good news.




March 24, 2010 in Faculty News | Permalink | Comments (1) | TrackBack (0)

Befort on "Regarded As" as a Congressional Do-Over

Befort Steve Befort (Minnesota) has just posted on SSRN his article (forthcoming Utah L. Rev.) Let's Try this Again: the ADA Amendments Act of 2008 Attempts to Reinvigorate the 'Regarded As' Prong of the Statutory Definition of Disability.  Here's the abstract:

Congress initially enacted the ADA in 1990 as a seemingly expansive civil rights statute aimed at eradicating disability discrimination. A key component of the ADA’s anti-discrimination formula is that it extends protection not only to those individuals who are currently disabled, but also to those individuals who are “regarded as” disabled. By this extension, Congress sought to curb “society’s accumulated myths and fears about disability.”

Beginning in the late 1990’s, a judicial backlash highlighted by four Supreme Court cases narrowly interpreted the ADA’s “disability” standing requirement and undercut the statute’s effectiveness. Operating in a “let’s try this again” mode, Congress enacted the ADAAA in 2008 as a multi-faceted attempt to override the restrictive court rulings. A crucial cornerstone of the 2008 act is a compromise concerning the scope of the “regarded as” prong of the disability definition. One aspect of the compromise is a dramatic expansion in the coverage of individuals adversely treated on the basis of an actual or perceived impairment. This expansion, however, is tempered by two accompanying limitations that exclude coverage of transitory and minor impairments and that eliminate any duty on the part of employers to provide reasonable accommodations to individuals who qualify as disabled solely under the “regarded as” prong.

This article chronicles the history of the ADA, the judicial backlash, and the events leading to the enactment of the ADAAA. The article then proceeds to discuss the likely impact and nagging concerns implicated by the “regarded as” compromise. The ADAAA clearly is welcome legislation that expands the class of individuals protected against disability discrimination and employment decisions premised on stereotypical preconceptions. The “regarded as” compromise, however, also comes with a series of nagging questions that have the potential to hinder the ultimate goals of the new legislation and perhaps even unleash a new judicial backlash. These areas of uncertainty must be closely monitored in the years ahead to ensure that the courts do not again frustrate the ADA’s reinvigorated promise.


March 24, 2010 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tucker: Should Labour Law be Pro- or Anti-Competitive?

Tucker Eric Tucker (York - Osgoode Hall) has just posted on SSRN his article (forthcoming Industrial L.J.) Re-Norming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?  Here's the abstract:

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid regulatory dilemmas. This article reviews the concept of regulatory dilemmas as formulated in the three major traditions of labour law scholarship, critically assesses recent work by Deakin and Wilkinson and by Hyde that proposes to renorm labour law and overcome regulatory dilemmas, and proposes an alternative approach to understanding regulatory dilemmas based on the work of Wright. 


March 24, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

FIU Symposium on the NLRB's 75th Anniversary

FIU FIU's Symposium, "Whither the Board?  The National Labor Relations Board at 75" is occurring this week, on March 26-27.  Papers will appear in a special symposium issue of the FIU Law Review.  According to the symposium's description:

As the National Labor Relations Board approaches its 75th anniversary, its continued vitality has been questioned.  It has operated with only two members since December 28, 2007.  Two calendar years have passed, and yet there are few signs that the public or the workforce has noticed.  Is this a temporary matter, or has one of the original New Deal agencies lost focus?  If it has, what should the Board do to reinvigorate its traditional role as the primary regulator of private-sector labor relations? 

The line-up of speakers and commentators is impressive and includes top academics as well as both of the current NLRB members, as well as former Board member and current Dean of FIU, Alex Acosta.  To see the program click of the following link:  Download FIU Symposium Schedule.

Kudos to Dean Acosta, Kerri Stone, and others at FIU for organizing such a great program.


March 23, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Reading the Tea Leaves of New Process Steel Oral Argument

4United States Supreme Court 112904 Although I posted earlier today over at the ACSBlog my thoughts on the New Process Steel case that was argued today in the U.S. Supreme Court, now that the oral argument transcript has been distributed I have some additional thoughts on the lawfulness of two-Board Member NLRB decisions. 

For background purposes, here is what I wrote over at the ACSBlog:

This morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions.

The issue is whether Section 3(b) of the NLRA allows for such delegations. Sheldon Richie of Austin, Texas argued for New Process and Deputy Solicitor General Neal Katyal argued for the United States/NLRB.

Some thoughts:

1.    Richie starts by overstating his case (especially because the lower appellate courts are split and in split in favor of the other side of the argument): "The National Labor Relations Act clearly states that at all times, a quorum of the board will be not less than three members." (my emphasis added).  Justice Scalia cuts him off almost right away (perhaps before he can cause too much damage to his side) and makes clear that Richie is only talking about Board decisions, not issues decided administratively or decisions delegated to the General Counsel by the Board:

MR. RICHIE:  . . . But we also believe that when the membership of the group falls below three, that the delegee group's authority to make adjudicatory decisions lapses.

JUSTICE SCALIA: I understood that argument and I thought that was the only one you were making. But you are making a broader one, that it also happens whenever the -- whenever the board's quorum disappears.

MR. RICHIE: You are correct, Justice Scalia. We are making that argument . . . .

Although other issues are discussed after this, I never get the sense that the natural employer proponents (Scalia, Alito, Kennedy, and Roberts) understand the argument that Richie is making. On numerous occasions, members of the Court describe their confusion.

2.    Justice Scalia then questions what the consequences would be of so holding:

JUSTICE SCALIA: So the regional offices can't function, of the NLRB?

MR. RICHIE: Well, we believe they can function. They can receive, for example, unfair labor practices complaints. They can't make adjudicatory decisions. And we think that that is exactly what -

JUSTICE SCALIA: Can the board pay salaries?

MR. RICHIE: We believe they can, because there is probably a different statute that enumerates that, Justice Scalia, other than this statute . . . .

JUSTICE SCALIA: I'm really reluctant to rely upon this first argument that you are making, because I really don't know what it does to all of the functioning of the board.

Have to admit: didn't see that one coming from a Justice that I thought would readily disagree with the 7th Circuit conclusion that the NLRB was adjudicating disputes with proper authority.

3.  Justice Ginsburg seems to champion the Board's approach to the issue:

JUSTICE GINSBURG: But here the court of appeals said that the Act does two things. First, it said that the full board can delegate full powers to any three-member group. That was step one, and that was done here.

And then it says there's this rule that a quorum is three, but then it said: Except as to one of these three-member groups that has been designated, except, and there the quorum is two. So why doesn't the statute answer the question that, yes, a quorum is three, except when it's two?

4.  The next discussion between Richie and the Justices is about whether the three members who formed the Board prior to the last Board Member's appointment expiring were "the Board" or just an "agent of the Board."  Justice Ginsburg maintains that the NLRA doesn't say anything about a three-member group that has a quorum of two being an agent of the board. Richie responds that common law principles of agency and principal make that delegee group an agent. Justice Kennedy appears to agree with Ginsburg: "The statute does use the word 'quorum' twice and, as Justice Ginsburg has pointed out, except that two members -- in its last phrase it uses the word 'quorum' twice: 'Except that two members shall constitute a quorum.' It doesn't say two members may act . . . . It says shall constitute a quorum."

5. Justice Breyer takes another tact:

JUSTICE BREYER: Can you -- can you -- if you are right, it seems to me you should have a very clear, concise answer to the question that I'm just going to ask you. And this is the question: Imagine that there was no delegation, none. Now we have five members; is that right? One of them dies. So there is a vacancy. Now, can the remaining four exercise the Board's power?

MR. RICHIE: Clearly.

JUSTICE BREYER: Clearly. Okay. So what is the difference between the situation I just described and this situation where the Board simply delegated its power to three people and one of them dies? What's the difference? I can't find any
difference in the language. So what is the difference?

MR. RICHIE: Justice Breyer, the difference is that in this statute there is a clear statement that at all times the board must have a three-member quorum. In your hypothetical there were still four members. 

Breyer appears unmoved: "Except that two members shall constitute a quorum of any group designated pursuant to the first sentence, which says "The board is authorized to delegate to any group of three all of the powers which it may itself exercise. So, what's the difference?"  Justice Sotomayor appears to agree: "I understand the word 'delegated' to mean it's given over its power to a subgroup. If it wants to take it back, it needs a quorum to do that. That's what I understand."

6. Here is perhaps Richie's best argument:

MR. RICHIE: Well, I think the problem is, Justice Sotomayor, that the delegation to a group of three is indeed a valid delegation. We don't contest that. But what we have here is a phantom group. And what the -- what the board said, because member Kirsanow's term expired in December, about 11 days after the delegation. And if you look at the minutes of the board when they are delegating to the group, it says in the minutes that they "are continuing to be a two-member quorum of a three-member group," as if member Kirsanow is a phantom. It's a fiction. The group ceases to exist and the board -- it's not just that the board falls below three and the board ceases to exist with all delegated powers to this group. The group ceases to exist.

Justice Kennedy does not appear to be buying what Richie's selling: "But that brings you back to Justice Breyer's hypothetical. There's five members on the board. Clearly they can delegate under the statute. Now there are only four members. Something happens to the fifth. Under your theory, the entity that originally delegated no longer exists and therefore the group, the entity that received the delegation of powers, must cease, must cease to act."

Richie responds: "It's not the same because the statute contemplates vacancies on the board and multiple vacancies, so long as they don't go below three."

7. The vacancy clause of Section 3(b) comes into focus. Justice Breyer reasserts Richie's argument for him: "Your answer to my question is that the vacancy clause applies to the full board but not to the group . . . . And now I see how you could read the statute that way . . . . [but given the upheaval your reading would cause,] why should it be read your way? I mean, I can think of a lot of reasons why not."  And to me, this is the crux of the case - the statute is susceptible to at least two reasonable reasons and the Board's reasoning not only save 500 Board decisions, but the Board's interpretation of its statute should be deferred, under administrative law principles, if its interpretation is reasonable.

8.  Perhaps because Deputy General Katyal realizes that things could have not been going better for him, his argument is more cautious and less interesting.  The government's argument in a nutshell:

We agree that the plain text controls this case and there are three features to that text. First, section 153(b) permits delegation of any or all of the board's power to three or more members. Second, that section sets out a general quorum rule of three members. And third as Justices Alito --Justices Alito, Kennedy and Ginsburg have pointed out, there is the phrase "except that" in the rule, a special quorum provision that sets up panel quorums at two members.

And in this case, faced with a vacancy crisis, the board validly delegated its powers in December 2007 to a three-member panel, and Petitioners have never contested otherwise. Rather, they argue that when the board dropped it down to two members . . . . [it lost its power.]

Katyal effectively encapsulates his argument later as "It's a three-member quorum requirement, 'except that.'"

9.    Justice Stevens indicates where he is troubled by the current situation: "When you are talking about individual cases it's easy. Sure, one member dies; the other two can finish. But you are talking about long-run governance of the board. The two members -- two members shall constitute a quorum of any group designated pursuant to the first sentence. Now, 2 years later, after -- what is the group designated pursuant to the first sentence at the time of the decision 2 years later? "  

Katyal responds: " . . . with respect to 2 years later, I submit to you that that penultimate sentence in 153(b) [Section 3(b)] is met. That is a designated group pursuant to the first sentence."

Justice Stevens later asks: "Do you think Congress would have authorized this [back in 1947 when Taft-Hartley was enacted]? Katyal responds: "As opposed to shutting down the entire board, yes, Justice Stevens."

10.  Katyal addresses the "phantom board member" argument this way with Justice Ginsburg:

JUSTICE GINSBURG: Is your point that official acts done stay in effect even though the official is gone, until the official's successor in office is appointed and that successor can remand the instruction?

MR. KATYAL: That's -- that's precisely correct.

All in all, this case is less about labor law and more a fascinating look at how the Court deals with statutory interpretation issues when the language of the statute is susceptible to more than one reason and the legislative history does not speak directly on the issue.

What surprises me most, is the magic words of "Chevron deference" did not come up at all during the entire argument.  Again, I think a prudent way to decide this case is to say that the Court will defer to a reasonable interpretation of the Board's understanding of its own statute if it is not irrational or inconsistent with the NLRA.  Since there does not appear to be the necessary irrationality or unreasonableness in the way that the Board has decided to hear these cases, the practice should stand.

My prediction: 9-0 in affirming the 7th Circuit and upholding the 2-member Board decisions (out on a limb, I know, but that's where this argument leaves me).

BTW, interesting stats offered by Katyal re: the 2-member Board: there have been 586 two-member decisions and about 70 or so have been set aside because they involve questions about overturning precedent or novel issues, and so they haven't reached agreement in those.


March 23, 2010 in Commentary, Labor Law | Permalink | Comments (1) | TrackBack (0)

Two New Tax Benefits Aid Employers Who Hire and Retain Unemployed Workers

WASHINGTON — Two new tax benefits are now available to employers hiring workers who were previously unemployed or only working part time. These provisions are part of the Hiring Incentives to Restore Employment (HIRE) Act enacted into law today.


The IRS has issued this press release on the new legislation that creates incentives to hire unemployed workers. See it for more details.


March 23, 2010 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Lynk Establishes Speakers' Series for Western

Western Over at the University of Western Ontario, the Toronto labour law firm of Mathews Dinsdale & Clark LLP (founded in 1956 as Canada's first labour relations and employment law firm) has made a commitment of $60,000 over three years to establish the Mathews Dinsdale Speakers' Series in Labour Law. The Series, which commenced in February, enables Western Law to bring leading labour law scholars and practitioners to campus to lecture an advanced seminar of labour law students on a wide-range of contemporary workplace law issues.

Michael Lynk is the organizer of the Series.  Some of the speakers in the series include: Judy Fudge (U of Victoria) on Unions, Women and Migrants, Lance Compa (Cornell University [of current bracket-busting sweet-16 fame]) on labour law reform in China, Brian Etherington (Windsor University) on labour law and constitutionalism, David Doorey (York University) on decentred labour law theory, and Paul Secunda (Marquette University) on cultural cognition at work.


March 23, 2010 in Conferences & Colloquia, Faculty News | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

Avakian Amicus Brief

Captive audienc As most readers know, one of Paul Secunda's pet projects has been arguing for state anti-captive audience laws.  He's now had an opportunity to act on that argument by filing an amicus brief on behalf of himself and four other professors (Bill Gould, Michael Gottesman, Henry Drummonds, and Joe Slater) in the Avakian case, in which Oregon new anti-captive audience law has been challenged on constitutional grounds.  The brief is now up on SSRN; according to its abstract:

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution.

This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers.

Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) contemplates, but are forbidden from forcing these same employees to listen on pain of losing their jobs or other benefits of employment. The right to speech does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.


March 22, 2010 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Supreme Court Grants Cert in Saint Gobain FLSA Case

4United States Supreme Court 112904 Rather than reinvent the wheel on this one since so many have written about it already, I will just note here quickly that the United States Supreme Court granted cert today in Kasten v. Saint Gobain Performance Plastics, 09-834 (opinion below from 7th Circuit here).

The Seventh Circuit had held that under the Fair Labor Standards Act (FLSA) anti-retaliation provision, 29 U.S.C. Section 215(a)(3), only written complaints, not oral ones, qualify as protected activity.

Ross Runkel helpfully explains:

Kasten alleged that he was discharged in retaliation for making verbal complaints to his superiors that the employer's placement of time clocks violated the Fair Labor Standards Act (FLSA). The FLSA's anti-retaliation provision prohibits an employer from retaliating against an employee because the employee "has filed any complaint...." 29 USC Section 215(a)(3).

The 7th Circuit held that "any complaint" includes an employee's internal ("intra-company") complaint. However, the court also held that an employee does not "file" such a complaint in this context when he submits the complaint in purely unwritten form. The court reasoned, "the natural understanding of the phrase 'file any complaint' requires the submission of some writing to an employer, court, or administrative body."

The 7th Circuit denied a rehearing en banc. Three judges DISSENTED from the denial of a rehearing, saying that "The court has adopted a construction of the Fair Labor Standard Act's anti-retaliation provision that is unique among the circuits." "[T]he court has taken a position contrary to the longstanding view of the Department of Labor, departed from the holdings of other circuits, and interpreted the statutory language in a way that I believe is contrary to the understanding of Congress."

I really have no idea how this case will come out, but the decision may be an interesting example of how different Justices engage in the exercise of statutory construction.

Hat Tip:  Rebecca Hamburg


March 22, 2010 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)