April 9, 2010
New Leadership at EEOC
On Wednesday, Jacqueline Berrien (left) was sworn in as Chair of the EEOC. Berrien comes to the EEOC from the NAACP Legal Defense and Educational Fund (LDF), where she served as Associate Director-Counsel for five and a half years. Also on Wednesday, Chai Feldblum (right) was sworn in as an EEOC Commissioner. Feldblum comes to the EEOC from Georgetown Law Center, where she has taught since 1991. Yesterday, David Lopez was sworn in as EEOC General Counsel. Lopez is a 15-year EEOC veteran, most recently serving as Senior Trial Attorney and Supervisory Trial Attorney in the EEOC’s Phoenix District Office.
April 8, 2010
Hogtying Vicarious Avengers of the Public Interest
A fascinating opinion out of the Fourth Circuit (hat tip to Kathleen Boozang, who focuses on Health Law but has recently been working on the employment implications of such things as the False Claims Act) is United States ex rel. Radcliffe v. Purdue Pharma, decided in late March.
As the “ex rel” suggests, this was a qui tam action in which Radcliffe sued his former employer on behalf of the United States claiming Purdue had defrauded the government by marketing OxyContin as cheaper than another drug. Although there were the usual arguments about whether the pleading was sufficiently detailed, the interesting part from an employment perspective was that Radcliffe had signed a release as part of a severance agreement with Purdue. The defendant claimed that his FCA suit was barred by that release.
Back to the “ex rel” part of the caption. Radcliffe claimed that the claim in question was that of the United States, which meant, of course, that he couldn’t release it. And, in fact, the False Claims Act has a provision barring the settlement of a FCA case by a relator unless the government (and the court) consents, which hadn’t happened. The Fourth Circuit rejected both arguments. As to the language of the False Claims Act, it barred only settlements of a “civil action,” and Radcliffe had executed his release before filing suit.
(There may be a lesson here on timing for future relators – file your FCA complaint before signing the release; since the complaint is under seal while the government decides whether to take the case over, you have a couple of months to finalize the severance terms. Or might the courts find this just a tad too cute?).
As for the argument that it wasn’t Radcliffe’s claim to settle, the court looked to a Supreme Court case on standing to find that the FCA can be viewed as a “partial assignment” of the government’s claim against the defendant to the relator. Thus, Radcliffe had a claim he could (and did) release.
These arguments obviously depend on the language of the release, but Purdue was either really foresighted or very lucky: one clause discharged Purdue from “all liability to Employee” for anything, which may or may not have reached the FCA claim as a relator (back to whether the liability is to the employee or the government). But another (probably added after Waffle House authorized EEOC suits on behalf of employees even if they had agreed to arbitration) provided that Radcliffe would not seek or accept any relief in any action involving an administrative agency “whether filed by Employee or on Employee’s behalf.”
This, of course, takes us to what is the most interesting question, which is whether a release, to the extent it bars an employee from pursuing a FCA claim on behalf of the United States is valid. One is tempted to think that allowing employees to release FCA claims against their employers would tend to negate the relator provisions of the statute, a statute that Congress has continually amended to expand its reach. After all, the whole idea is that employees are strategically positioned to know about false claims and so often uniquely able to vindicate the government’s interest in safeguarding the US Treasury.
Apparently, that argument was not so clear to the Fourth Circuit, which found that “overriding policy considerations” did not bar enforcement of the Release – at least in this case. The opinion is narrowly drawn because the court looked to a Ninth Circuit case that had disallowed a release when the government had learned of the underlying facts only because of the filing of the qui tam complaint. In the Purdue Pharma case, in contrast, the government knew (or had access) to the information in question before Radcliffe sued. Plus, the government, as amicus, had supported enforcing the release in the case before it because it had had adequate opportunity to fully investigate the allegations (whether in fact it did so).
Given the structure of the FCA, especially the opportunity of the government to take over a FCA case, and given the fact that the government was apparently fully aware of Mr. Radcliffe’s allegations before he filed, maybe this result is not so objectionable.
But I still object. I would have thought that allowing relators to pursue claims that the government chooses not to is because Congress determined that the government can’t be trusted to tend to the store. If that’s true, I’m not sure why the courts would ever allow companies like Purdue to take other vicarious avengers of the public interest off the board by means of releases. To the extent that the Purdue Pharma court fashions release policy to encourage disclosure to the government, it seems to have missed this point.
And there’s nothing about the case that’s limited to releases in severance packages. Am I the only one who foresees applicants to employers in the defense, health care, and life science industries being required to sign waivers of FCA rights as a condition of employment? Or does that take a good joke too far?
Waterstone et al. Review Bagenstos's Book on Disability Rights
Michael Waterstone (Loyola Los Angeles) posted this morning, over at PrawfsBlawg, about his co-authored review of Sam Bagenstos's book (mentioned on Workplace Prof Blog here) on disability rights. With Michael's permission, I am cross-posting his post here:
I am happy to share a new project I have been working on. Along with David Wilkins and Michael Stein, I have co-authored a book review of Sam Bagenstos's book Law & Contradictions of the Disability Rights Movement. Our book review, available [on SSRN] here, is forthcoming in the Harvard Law Review.
One of the main themes of Professor Bagenstos's book is that while the Supreme Court can be criticized for how it has interpreted the Americans with Disabilities Act, its decisions may also be be fairly explained by contradictions within the disability rights movement. This diversity of interests has created tensions within the movement’s goals, allowing the Rehnquist Court to select interpretations of the scope of disability rights from among a competing set of principles articulated by members of this large and contentious movement.
We agree with most of what Professor Bagenstos offers in his book, and recognize it as an important and novel contribution to the literature. In our Review, we suggest that Professor Bagenstos implicitly raises an even more fundamental question: given that internal divisions have undermined the movement’s goals, why have disability rights advocates failed to develop strategies for bridging – or at the very least, camouflaging – their differences in order to present a more effective, united front? We use this Review as an opportunity to discuss the role of “disability cause lawyering,” a topic unaddressed by both the disability rights and cause lawyering scholarship. We hope this is the beginning of a series of projects in this area.
Struve on Title VII Burden Shifting
Catherine T. Struve (Penn) has just posted on SSRN her article (forthcoming B.C. L. Rev.) Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions. Here's the abstract:
This Term, in Gross v. FBL Financial Services, Inc., the U.S. Supreme Court held the Price Waterhouse burden-shifting framework inapplicable to Age Discrimination in Employment Act (“ADEA”) claims. This Article finds the Gross Court’s rationales for repudiating Price Waterhouse unpersuasive. Although the crux of the Court’s argument is that it is too confusing to instruct a jury on the burden-shifting framework, in actuality, there is no evidence that burden-shifting instructions are unduly confusing. In fact, Gross will exacerbate a different sort of confusion: that which arises when a jury must resolve two claims under different burden frameworks. At best, then, the Gross Court’s concerns over judicial administration are a wash. They fail to justify the Court’s departure from the 20-year-old Price Waterhouse precedent. The Article therefore considers the possibility that the Court’s decision in Gross was driven by policy views about the nature and merit of ADEA claims, or of employment discrimination claims more generally. By shifting the balance in ADEA and perhaps other employment discrimination cases without articulating a persuasive reason for doing so, the Court may have laid the groundwork for Congress to revisit the question - thus opening the way for a more explicitly policy-based overhaul of the burden frameworks.rb
The Working Conditions of Legal SecretariesFelice Batlan (Chicago-Kent) has just posted on SSRN her article (forthcoming Studies in Law, Politics, & Society) ‘If You Become His Second Wife, You are a Fool’: Shifting Paradigms of the Roles, Perceptions, and Working Conditions of Legal Secretaries in Large Law Firms. Here's the abstract:
The academic literature which addresses the creation and transformation of large law firms seldom mentions the presence of legal secretaries. Likewise works which discuss women attorneys and even issues of gender in such firms also neglect women secretaries to the point that one might conclude that female lawyers are the only women at large law firms. Such absence of legal secretaries, the vast majority who are women, reproduces law firm hierarchies in which attorneys are deemed to matter and to be of importance in understanding the legal profession and law firm dynamics while secretaries remain invisible. Given the lack of secondary literature on legal secretaries in large law firms, much of this article is based upon legal secretaries’ responses to a nation-wide survey which I conducted in 2009. Using such data, along with other primary sources, the article examines how legal secretaries’ roles and work have changed during the past fifty years, why women decide to become legal secretaries, their level of satisfaction, the work/ family conflicts they experience, how the recent financial crisis has affected them, and the complicated relationships that they have with attorneys, especially women attorneys. Moreover, the most significant scholarship on secretaries has depicted the secretary/boss relationship as one of a personal and domestic nature – what we might call the “second-wife” or “office wife syndrome.” Yet what does this mean in a culture in which the very meaning of “wife” is changing and unstable and where legal secretaries now work for a multiple attorneys, including women lawyers.rb
April 7, 2010
The End of the Two-Member NLRB
It's official. The two recess appointments to the NLRB--Mark Pearce and Craig Becker--were sworn in on Wednesday, giving the NLRB four members. (And, no, it won''t make the New Process Supreme Court case reviewing the validity of the two-member Board moot as some the two-member cases are still under challenge and, unfortunately, it can easily happen again.) Pearce named Kent Hirozawa his Chief Counsel and Becker picked Peter Winkler. I don't know Hirazawa, but I used to work with Winkler (he was was my first supervisor the NLRB's Appellate Court Branch), who is a great choice and has probably forgotten more labor law than I'll ever know.
The big question now is what will happen with the nomination of Brian Hayes, the Republican nominee. No doubt another bruising fight to come, especially once the recess appointments expire.
Secunda Talk at LERA Event
If you're in the Milwaukee area on April 22 (more precisely, in Wauwatosa), you might want to catch the LERA Wisconsin dinner that evening. Speakers are Paul Secunda (Marquette) and Joseph Morris (Morris & De La Rosa). The topic:
The National Labor Relations Board at 75: Nirvana, Armageddon, or Something in Between? – a look at the controversy surrounding the current nominations and recess appointments to the NLRB and the impact, if any, on the consideration of the Employment Free Choice Act (EFCA).
It'll no doubt be a good one; if you're interested in attending, you can email: email@example.com.-JH
Congratulations to Jeff ...
... for a favorable citation in today's Washington Times. The article, Is Use of Interns Abuse of Labor?, picked up on Jeff's post Sunday on Unpaid Internships. Here's an excerpt of the Washington Times article:
Labor law blogger Jeffrey M. Hirsch, associate professor at the University of Tennessee College of Law, said, "It's obviously been an issue for some time, but the bad economy has given employers more incentives to pinch pennies and made interns more desperate for experience - even the unpaid variety."
While demand for coveted internships is at an all-time high, "they can also undermine the purpose of wage laws and highlight class problems when only more wealthy students can afford months of unpaid full-time work," Mr. Hirsch noted.
Additionally, Jeff's same post was re-published by Today's Workplace.
Save the Date
The Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law will be held September 24-25 in St. Louis, co-hosted by Washington University and St. Louis University. More details on how to register, hotel information, etc. will follow shortly, but keep the dates in mind for your fall semester planning. Hope to see lots of you there!
April 6, 2010
Intimate Associations and Public Employment
In the past, I have written about my belief that constitutional protections for public employees in sexual privacy should enjoy the same protections afforded to First Amendment rights to speech and religion.
So far, courts have been unreceptive to my claims that post-Lawrence v. Texas, the right to sexual privacy represents a heightened constitutional right which should lead only to employer interference with that right if the employer has a legitimate and substantial justification for so doing. The most recent example of courts' lack of receptivity to this argument comes from the 11th Circuit today.
Ross Runkel provides the following summary of the 11th Circuit case of Starling v. Bd of Cnty Commnrs (11th Cir 04/06/2010), in which the court upheld a public employee's demotion where the firefighter had been caught in an extramarital affair:
Starling sued the employer under 42 USC Section 1983 for violation of his First Amendment right to intimate association. The trial court granted the employer's motion for summary judgment. The 11th Circuit affirmed.
The court framed the question in the appeal as whether the employer violated a firefighter's First Amendment right to intimate association by demoting him for an extramarital affair with one of his subordinates. The court concluded that the public employer's interest in discouraging intimate association between supervisors and subordinates was so critical to the effective functioning of its fire department that it outweighed Starling's interest in his relationship with the subordinate in the workplace. The court assumed arguendo that Starling's right to intimate, extramarital association with a subordinate was fundamental, but did not address whether the First Amendment protected intimate, extramarital association.
I have many issues with not only the conclusion of the court, but also, perhaps more fundamentally, about the way the legal issue is framed (and I'm not sure if this is the fault of the plaintiff's attorney or the court):
1. I do not think there is such a thing as a claim to intimate association under the First Amendment. I read Roberts v. U.S. Jaycees as finding an expressive association right under the First Amendment, and an intimate association right under the substantive due process provisions of the Fourteenth Amendment. I am aware of Stanley v. Georgia and the right to have pornography in one's home, but I submit that is not an intimate association case at all.
2. Even if Roberts' location of the intimate association claim is properly in the Fourteenth Amendment, I do not think that a public employee plaintiff would get much constitutional protection under this precedent. Courts have been reluctant to give heightened protected to intimate association claims in the 25 years since the Roberts case was decided.
3. I would have argued that the right here is one of sexual privacy under Lawrence v. Texas. I would have also argued that although it is unclear as to what the appropriate standard of scrutiny is in Lawrence cases, at the very least some form of heightened scrutiny is involved. Indeed, I would compare Lawrence to the Pickering line of First Amendment cases and ask the court to conduct a balance of the employee's sexual privacy interests against the rights of the public employer to run an efficient government workplace. Unless the employer had a legitimate and substantial justification for demoting/firing the employee, I would find that sexual privacy interest had been violated by the public employer's actions. I do not believe that all cases of sex between supervisors and subordinates automatically meet this standard but we would need to inquire more into the nature of the relationship.
4. What is striking about this case is that the court assumes arguendo that there is a fundamental right to intimate association, but that such fundamental right is outweighed by the efficiency interests of the employer. If indeed the intimate association right, wherever found, is a fundamental one, I would think the narrowly tailored means to meet a compelling state interest standard would be involved and a mere government interest in efficiency would hardly be enough to permit the demotion in these circumstances. Note also that the court affirms a summary judgment, holding that there is no genuine issues of material fact and the case can be decided as a matter of law. But my approach in #3 suggests many important disputed facts need to be determined by a fact-finder.
Jonathan Gruber (MIT) & Samuel Kleiner (Carnegie Mellon PhD Candidate) have posted their article, "Do Strikes Kill? Evidence from New York State," which has some results that may garner some publicity. The abstract:
Concerns over the impacts of hospital strikes on patient welfare led to substantial delay in the ability of hospitals to unionize. Once allowed, hospitals unionized rapidly and now represent one of the largest union sectors of the U.S. economy. Were the original fears of harmful hospital strikes realized as a result? In this paper we analyze the effects of nurses’ strikes in hospitals on patient outcomes. We utilize a unique dataset collected on nurses’ strikes over the 1984 to 2004 period in New York State, and match these strikes to a restricted use hospital discharge database which provides information on treatment intensity, patient mortality and hospital readmission. Controlling for hospital specific heterogeneity, patient demographics and disease severity, the results show that nurses’ strikes increase in-hospital mortality by 19.4% and 30-day readmission by 6.5% for patients admitted during a strike, with little change in patient demographics, disease severity or treatment intensity. This study provides some of the first analytical evidence on the effects of health care strikes on patients, and suggests that hospitals functioning during nurses’ strikes are doing so at a lower quality of patient care.
It's no surprise that strikes have an effect on patient care--the strikes wouldn't be effective if they didn't. But those sound pretty bad, at least to a non-expert like me. The results obviously beg the question whether nurses power to strike or the procedures required before they do should be modified. I also wonder what data is out there on patient care in unionized hospitals versus nonunionized ones. That's a slightly different topic, but has some relation to the policy questions involved.
Williams Delivers Piper Lecture
Today, Chicago-Kent held its 32nd annual Kenneth M. Piper Lecture, always a great event. I can't find a link to the video yet, but when I do I'll post it.
Joan Williams (UC Hastings/Worklife Law Center) spoke on Family Responsibilities Discrimination in the Great Recession: Impact of EEOC Guidelines. Commenting were Deidra Byrd (Walgreens) and Stephen Moldof (Cohen, Weiss & Simon LLP). It was a great discussion, focusing in large part on the trends detailed in the Worklife Law Center's report of earlier this year.
One of the most interesting things, from my perspective, on family responsibilities discrimination litigation is the very varied forms the litigation takes. While over sixty municipalities and several states prohibit this kind of discrimination explicitly, the majority of jurisdictions don't have this carved out in their antidiscrimination statutes. So some cases are brought under Title VII, particularly the Pregnancy Discrimination Act provision, but others are brought under the EPA, ADA, ERISA, and various state tort causes of action, to name a few. The success rate for these cases is relatively high: about 50%, in large part because penalizing people for taking care of others rubs most judges and juries the wrong way. It's an interesting case study on how activists and ordinary people, both employees and management, begin to shape the law and workplace norms in new ways.
Seiner and Gutman on the New Disparate Impact
Joe Seiner (South Carolina) and Ben Gutman (NY Appellate Atty) have just posted to SSRN their forthcoming piece in the Boston University Law Review: The New Disparate Impact.
Here is the abstract:
Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), signals a sea change for this disparate-impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion has also created a new affirmative defense for employers facing claims of disparate impact. This Article marks the first time that this new defense has been identified and explained in the legal literature.
Before Ricci, disparate impact was a purely no-fault doctrine. An employer was liable if its employment practice had an unlawful disparate impact, even if the employer did not know about the impact or intend to subject its employees to an unlawful practice. The focus of litigation was not on the employer’s state of mind, but rather on the aspects of the employment practice. After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.
Very interesting and looks like a very worthwhile read among the increasing literature on this watershed case.
Workplace Prof Moves for 2010-2011
It is that time again - the annual report of workplace law professors comings, goings, etc. (as always, if you have additional information, please provide in the comments). This post will be updated and moved to the top as additional information comes in.
Entry Level Hires
- Jessica Roberts (Associate-in-Law at Columbia Law School) to Houston
- Marcy Karin (Legislative Counsel for Workplace Flexibility 2010) to Arizona State
- Joey Fishkin (Yale Reubhausen Fellow) to Texas
- Cary Franklin (Yale Ribicoff Fellow) to Texas
- Brishen Rogers to Temple
- Nancy Leong to William & Mary
Promotions and Tenures
- N. Jeremi Duru (Temple) has been recommended for tenure by faculty
- Julie Suk (Cardozo) has been recommended for tenure by faculty
- Nicole Porter (Toledo) has been recommended for tenure and promotion to full professor by the faculty
- Wendy Greene (Cumberland) has been promoted to Associate Professor of Law, effective the 2010-2011 school year
- Melissa Hart (Colorado) to Director of the Byron R. White Center for the Study of American Constitutional Law at Colorado
- Mark Grunewald (Washington & Lee) to Dean at W&L
- Marty Katz (Denver) to Dean at Denver
- Katherine Stone (UCLA) named to Arjay and Frances Miller Professor of Law at UCLA
- Orly Lobel (San Diego) named Herzog Endowed Scholar at San Diego
- Mark Kende (Drake) named Dean's Visiting Scholar at Georgetown Law School
- Michael Waterstone (Loyola-LA) appointed as J. Howard Ziemann Fellow, commencing the 2010-11 academic year.
- Peggie Smith (Iowa) to Washington University
- Zak Kramer (Penn State/Dickinson) to Arizona State
- Jason Solomon (Georgia) to William & Mary
- Norman Stein (Alabama) to Drexel
- Glenn George (North Carolina) to Arizona (University Counsel)
- Andy Morriss (Illinois) to Alabama
- Leticia Saucedo (UNLV) to UC-Davis
- Lesley Wexler (Florida State) to Illinois
- Tristin Green (Seton Hall) to San Francisco
- John Donohue (Yale) to Stanford
- Miriam Cherry (McGeorge) to St. Louis (2010-2011)
- Vicki Schultz (Yale) to UCLA (2010-2011)
- Michael Fischl (Connecticut) to Yale (Spring 2011)
- Jennifer Bard (Texas Tech) to Drake (2010-2011)
- Carrie Griffin Basas (Tulsa) to North Carolina (VAP)
- Ani Satz (Emory) to Georgetown (Fall 2010)
- Steve Willborn (Nebraska) to Seton Hall (Fall 2010)
- Julie Suk (Cardozo) to UCLA (Spring 2011)
- Jason Bent (practice) to Penn State (VAP)
- Bill Corbett (LSU) to Georgia (Spring 2011)
- Chai Feldblum (Georgetown) to EEOC Commissioner
- Marty Malin (Chicago-Kent) to member of Federal Service Impasses Panel of the Federal Labor Relations Board (part-time position)
- Sam Bagenstos (Michigan) to DOJ
- Katie Kennedy (John Marshall) to members on the Internal Revenue Service’s Advisory Committee on Tax Exempt and Government Entities (ACT) for 2010–2012 (part-time position)
- Ann Puckett (Georgia)
April 5, 2010
Levinson on 21st-Century Issues in Arbitration
Ariana R. Levinson (Louisville-Brandeis has just posted her article (forthcoming Transactions: Tennessee J. Bus. L.) What Hath the Twenty First Century Wrought? Issues in the Workplace Arising from New Technologies and How Arbitrators are Dealing with Them. Here's the abstract:
Employees are using new technologies. They are using GPS, electronic mail, the Internet, cell phones and other handheld devices, blogs, Twitter, texting and social networking sites. They are using new technologies while at the workplace and while away from the workplace, while working and while engaging in personal pursuits. They may be using the technologies appropriately or to the detriment of their employers. Employers are also using new technologies. They are monitoring their employees, both in the workplace and away from it. They too may be doing so appropriately, or they may be doing so in a manner invasive of their employees’ privacy or dignity.
Needless to say, the use of these new technologies gives rise to employment disputes that differ in kind from those of times past. Many scholars have written about the failure of the law to keep pace with the workplace changes brought about by new technologies. Many have also written about the failure of the federal and state statutory laws and of the common law to systematically and sensibly resolve employment disputes arising out of the use of new technologies. But one place that disputes arising out of new technologies are being grappled with in a systemic manner, and handled in a relatively sensible manner, is by arbitrators in the union sector.
This article surveys the types of issues being arbitrated, the criteria arbitrators use to decide the cases, and the outcomes of the cases. It builds on and updates my prior work in the area. Section I provides an introduction to the article. Section II provides an overview of my research. Section III addresses the types of cases involving new technologies arising as challenges to discipline for lack of just cause. Section IV addresses the related issue of employer monitoring of employees. Section V focuses on cases involving new technologies that have arisen under provisions of the collective bargaining agreement other than a just cause provision.
Dill on Restoring Unions in America by Reforming Nonemployee Union Representative Access Rights to Employer Property
Jesse Dill (Marquette Law student) has posted on SSRN his forthcoming piece in Transactions: The Tennessee Journal of Business Law: Restoring Unions in America by Reforming Nonemployee Union Representative Access Rights to Employer Property.
Here is the abstract:
Unions have lost the once strong position they held in the American workplace. Academics have long debated how to restore the National Labor Relations Act’s relevance in today’s global marketplace. Congress’s preferred solution seems to be the Employee Free Choice Act, which would reform the unionization voting process, but this proposal does not strike at the heart of the matter. Labor is losing the debate on the benefits of unionization for the average worker because it is operating on an uneven playing field where employers can exert undue influence on employees to prevent them from organizing with no real opportunity for nonemployee union representatives to respond. True reform must focus on the ability of union representatives to access employer property, which is currently governed by the Supreme Court’s decision in Lechmere v. NLRB.
Recognizing the importance of access to employer property, Professor Jeffrey Hirsch has recently proposed changes to the Lechmere test that would eliminate consideration of state law from the analysis. However, Labor should actually embrace state property law as an answer to the access dilemma. In order to support this claim, this article presents a unique analysis of the different ways in which state property law can provide a means for nonemployees to access private property. Thus, the article concludes with a proposal to reform the Lechmere analysis by emphasizing state property law and also calls for Congress to eliminate discrimination against labor viewpoints in employers’ decisions to open their property to nonemployees.
Jesse is my former research assistant who did yeoman work for me last year on a labor law project. I am a very proud professor to say the least. Just a coincidence he takes my side in my debate with Jeff that we debated a couple of years ago. My understanding is that Jeff will write a rebuttal to accompany Jesse's piece in the Journal.