Saturday, April 24, 2010

Novartis Sex Discrimination Suit

Novartis The New York Times had a recent article on one the biggest class action discrimination suits to go to trial.  The employer is Novartis Pharmaceuticals and the certified class of plaintiffs are over 5,600 saleswomen, who are seeking $200 million in damages.  The suit alleges discriminatory pay and promotions targeting women, particularly pregnant ones.  There are a lot of difficulties in establishing these systemic claims of discrimination (for instance, will the $105 a month average lower salary for saleswomen help show discrimination, or will Novartis--a long-time member of Working Mothers' top-100 companies to work for--be able to explain away the difference through other factors?), but based on the story there are certainly some strong examples of individual discrimination that will help the larger case:

One woman’s affidavit states that her Novartis manager told her he preferred not to hire young women, saying, “First comes love, then comes marriage, then comes flex time and a baby carriage.”

Another, who is scheduled to be the second to testify, claims she was encouraged to get an abortion.

A third woman, Amy Velez of Laurel, Md., the lead plaintiff, had twins in 2001. She said in an affidavit that she was repeatedly passed over for promotion by men who had inferior sales numbers. Ms. Velez also said she heard a manager asking recruiters if prospective employees were married or had children.

Stay tuned.

Hat Tip:  Barbara Barreno


April 24, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

DLR Quotes Secunda on Conkright

Secunda Yesterday's Daily Labor Report discusses at length the Supreme Court's decision Wednesday in Conkright v. Frommert.  In Conkright, the Court ruled that a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone.  Paul thinks the Court got it wrong, as you can see from his Workplace Prof Blog post here.  The Daily Labor Report discussion of the case quoted extensively from Paul's post.  Here's what DLR said:

Shortly after the Supreme Court released the decision, Professor Paul M. Secunda of Marquette University Law School in Milwaukee reacted to the decision on the Workplace Prof Blog.  Secunda was among several law professors who filed amicus briefs in the case in support of the Xerox employees.

“I am dismayed that the conservatives on the Supreme Court still do not get how ERISA remedies work (or that they do, but choose to side with business interests regardless),” Secunda said on the blog. “In a nutshell, the case came down to Chief Justice Robert's (and his fellow conservatives') belief that Xerox had made ‘just one honest mistake' in interpreting the plan unreasonably in the first place. It then follows that Xerox should get a second bite at the apple in saying how the plan should be interpreted, because after all their arbitrary and capricious first go at it was made in good faith,” Secunda said.

He added that the evidence “clearly established” that there was anything but an “honest mistake” on Xerox's part. “It was a well-thought out plan of denying these employees their pension benefits. And with business allies on the court forming a majority, Xerox was able to prevail,” Secunda said.


April 24, 2010 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Reminder. . . .

. . . about the Seton Hall Forum.  Proposals are due Monday, May 3rd.  More information is available on the website.

And, as long as I have your attention, here are a few pics from the Fall Forum:

Commentator  Roberto Corrada, with young scholar Charlotte Garden in the background. 


Charlotte's just placed her piece Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech in Fordham.

* * *

A pedantic Tim Glynn, commenting like crazy. The other "founding" commentators were Tristin Green,    Mike Zimmer, and me.  



* * * 

This is young scholar Hina Shah, whose paper, Broadening Low-Wage Workers' Access to Justice:  Guaranteeing Unpaid Wages in Targeted Industries was just accepted by the Hofstra Labor & Employment Law Journal. 



* * *

 The remaining young scholars were Stephen Rich and Jason Bent. Stephen presented Against Prejudice and Jason presented The Telltale Sign of Discrimination: Probabilities, Information Asymmetries, and the Systemic Disparate Treatment Theory

* * *

The other "outside" commentators were Susan Sturm (pictured below) and Rebecca Hanner White.


We're thankful to all the old timers and newbies for an especially provocative Forum, and  we look forward to another round of terrific submissions next week.


April 24, 2010 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

Lipnic Sworn in as Final EEOC Commissioner

EEOC This week, Victoria Lipnic was sworn in as a Commissioner at the EEOC, putting the agency at its full, five members.  Lipnic, former head of the Wage and Hour Division in the Bush Department of Law, was one of Obama's recent recess appointments.  According to the EEOC announcement:

Lipnic’s government experience includes service as Assistant Secretary of Labor for Employment Standards from 2002 to 2009.  The Employment Standards Administration oversaw the Wage and Hour Division, the Office of Federal Contract Compliance Programs (OFCCP), the Office of Labor Management Standards and the Office of Workers Compensation Programs.  During her tenure as Assistant Secretary, these divisions revised regulations on overtime, the Family and Medical Leave Act, and issued the first-ever regulations for OFCCP to evaluate compensation discrimination.

“Victoria Lipnic’s breadth of experience with labor laws gives her unique insights into our work,” said EEOC Chair Jacqueline A. Berrien.  “She will be a valued partner as we move forward to eradicate employment discrimination from the nation’s workplaces.”

“I believe equal opportunity in work is critical to all Americans and to how we define ourselves as a nation,” Lipnic said.  “I look forward to working with Chair Berrien and my fellow commissioners in this critical task. I hope that I will carry out my responsibilities in a manner that will do honor to all who have advanced the cause of civil rights in our country – with understanding and respect toward all.”

Immediately prior to joining the EEOC, Lipnic was of counsel to the law firm of Seyfarth Shaw LLP in its Washington, DC office. As part of her work for the firm, she counseled clients on compliance with numerous labor and employment laws.  She has testified before Congress many times and did so before the U.S. House of Representatives on the subject of paid sick leave on behalf of the U.S. Chamber of Commerce last June.  

Before joining the Department of Labor, she was the Workforce Policy Counsel to the then-Majority (Republican) members of the Committee on Education and the Workforce in the U.S. House of Representatives and was an attorney for labor and employment matters for the U.S. Postal Service.  Lipnic also worked as special assistant for business liaison to then-Secretary of Commerce, Malcolm Baldrige.


April 23, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

DOL Releases Fact Sheet on Unpaid Internships

InternIn earlier posts on the Workplace Prof there has been an interesting discussion about the increasing use of unpaid internships in this economy.  Now, the Department of Labor just issued a new fact sheet on internships.

For further information, see this Huffington Post story.

Hat Tip:  Jesse Dill


April 23, 2010 in Wage & Hour | Permalink | Comments (1) | TrackBack (0)

Recently Published Scholarship: Berkeley JELL


Berkeley Journal of Employment and Labor Law
Volume 30, Number 1


  • Scott L. Cummings, Hemmed In:  Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, p. 1.
  • Tiffani N. Darden, The Law Firm Caste System:  Constructing a Bridge Between Workplace Equity Theory & the Institutional Analysis of Bias in Corporate Law Firms, p. 85.
  • Michael C. Duff, Embracing Paradox:  Three Problems the NLRB Must Confront to Resist Further Erosion of Labor Rights in the Expanding Immigrant Workplace, p. 133.
  • Marcia L. McCormick, The Truth is Out There:  Revamping Federal Antidiscrimination Enforcement for the Twenty-First Century, p. 193.
  • Eli Naduris-Weissman, The Worker Center Movement and Traditional Labor Law:  A Contextual Analysis, p. 232.
  • Ronald Turner, Pliable Precedents, Plausible Policies, and Lilly Ledbetter's Loss, p. 336.
  • Recent Publications, p. 371.

April 23, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: Hofstra LELJ


Hofstra Labor & Employment Law Journal
Volume 27, Number 1
Fall 2009


  • Samuel Estreicher, Employer Reputation at Work, p. 1.
  • Ronald Turner, On the Authority of the Two-Member NLRB:  Statutory Interpretation Approaches and Judicial Choices, p. 13.
  • Desiree LeClercq, Section 8(f) Prehire Agreements and the Exception to Majority Representation:  Are Construction Workers Getting the Shaft? p. 51.
  • Walter T. Champion, Jr., The Second Circuit Takes a Second Look at the Non-statutory Labor Exemption in Professional Sports:  A Review of Wood v. National Basketball Association, Caldwell v. American Basketball Association, National Basketball Association v. Williams, and Clarett v. National Football League, p. 83.
  • Christopher R. Stevenson, Abusing Abuse of Discretion:  Judicial Review of ERISA Fiduciaries' Discretionary Decisions in Deinal of Benefits Cases, p. 105.
  • Donald T. Bogan, ERISA:  The Foundational Insufficiencies for Deferential Review in Employee Benefit Claims--Metropolitan Life Insurance Co. v. Glenn, p. 147


  • Ashleigh Garvey & Claire Mitchell, Who's Your Daddy?  A Proposal for Paid Family Leave to Promote the Growth of Families, p. 199.
  • Adam J. Hiler & Leah E. Saxtein, Falling Through the Cracks:  The Plight of Domestic Workers and Their Continued Search for Legislative Protection, p. 233.

April 23, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Blue Penciling the Blue Pencil Rule?


5.  What to do with overbroad covenants?

In § 8.08, the draft Restatement adopts a version of the “blue pencil” rule for overbroad covenants. I’ve addressed this question at length in a forthcoming article in Ohio State, and I recognize that this draft has made some efforts to meet the concern that this approach incentivizes overbroad covenants. It says that partial enforcement should occur only when the employer had a reasonable, good faith belief in the clause's legality and provides in the blackletter that lack of such a belief “may be manifested by overbreadth alone, if sufficiently egregious, or by overbreadth in connection with other evidence showing that the employer was not seeking to protect is legitimate interests.”

This is, admittedly, a substantial step forward. But, perhaps needless to say, I don’t think it goes far enough, and I’m not persuaded by the rationale that, but for the blue pencil escape hatch, courts will enforce as written covenants they believe to be too broad. While that this is a problem, the law's focus on the few covenants litigated continues to empower employers to overreach in the tens of thousands of post employment restraints that are never litigated.    


April 23, 2010 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Thursday, April 22, 2010

Bill to Protect Non-Citizen Workers

CongressLast week, Senator Robert Menendez (D-NJ), along with cosponsors Kirsten Gillibrand (D-NY), Tom Harkin (D-IA), and Patty Murray (D-WA), introduced the Protect Our Workers from Exploitation and Retaliation (POWER) Act. The act would amend the Immigration and Nationality Act to provide protections for non-citizen workers when those workers have been harmed by violations of the immigration laws or labor and employment laws, when they might be witnesses in cases under the immigration or labor and employment laws, or when they have reported violations or have cooperated with authorities. The act would protect these workers from automatic deportation and from retaliation by the employers who are exploiting them. It's an important development in immigration and labor reform. 

The bill has been referred to the judiciary committee, and we'll update you as events progress.


April 22, 2010 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

The Restatement and Non-Competes


5.   Covenants Not to Compete  

New Image In my view, § 8.06 does a real service.  Its restatement of the rules regarding when restrictive covenants enforceability has few surprises (with an important exception to be noted), but it adds considerable value in specifying four situations in which such covenants will not be enforced. These are:

· Discharge of the employee “on a basis other than cause”

· Employer bad faith in obtaining the covenant not to compete

· Material breach by the employer; and

· “great public need” outweighing the employer’s interest

While these are all supported by some case law, there is a fair amount of variation in the states, and the section’s focus on these factors is likely to resolve much confusion and reduce the range of opportunistic employer conduct.

    Another service the draft Restatement provides is making clear that courts should not enforce  even reasonable restraints as written if “the employer’s interest could equally be well served by a narrower restraint.” Cmt. c. It suggests that a non-compete clause may be narrowed to a non-solicitation clause in the appropriate circumstances. My quibble here would be that this kind of “least restrictive alternative” analysis be explicitly included in the blackletter. And I might strike “great” from “great public need.”

    More than a quibble would be the disappearance from the Restatement's formulation of a valid restraint the notion that it not unduly burden the former employee. The Reporters Notes observe that courts “seldom, if ever, invalidate covenants solely on this ground,” but the entire omission of the employee’s interest is dramatic. Further, the drafter’s statement that the burden “is a tack-on rationale courts use only when the restrictive covenant is otherwise invalid” may overstate the case.

    Relevant to this discussion might be the confusion about whether “independent consideration” is needed for a valid covenant for a current employee.  Admittedly, this requirement imposed by some states is illogical under ordinary contract theory, which only reinforces the notion that courts are recognizing, if incoherently, that employees’ interests may not be adequately protected by conventional analysis.  If the Restatement is going to do away with the requirement of independent consideration, maybe it shouldn’t be so quick to also do away with the formal standard along the lines that the covenant impose “no undue hardship on the employee."



April 22, 2010 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 21, 2010

Xeron Wins ERISA Section 502(a)(1)(B) Supreme Court Case (Unfortunately)

4United States Supreme Court 112904 I am not going to  try to be unbias in this post.  I am dismayed that the conservatives on the Supreme Court still do not get how ERISA remedies work (or that they do, but choose to side with business interests regardless).  I, along with some other law profs, had filed an amicus brief in support on Xerox employees to receive their proper pensions in Conkirght v. Frommert, 08-810 (U.S. Apr. 21, 2010). Back in November, Jeff posted on that amicus brief we filed:

One of the Supreme Court's labor and employment cases this term is Conkright v. Frommert, which addresses the question of whether a court must continue to give deference to a plan administrator's interpretation of a pension plan after the first interpretation has been found to be arbitrary and capricious under Firestone.

In reviewing the oral argument transcript back in January (the employees were ably represented by good friend and Whittier Law Prof Peter Stris), I actually predicted a 5-4 decision for Xerox (didn't realize that Sotomayor had recused herself), because I thought the majority would continue to defer to the interpretation of the plan administrator.

Unfortunately, I was right. In a nutshell, the case came down to Chief Justice Robert's (and his fellow conservatives') belief that Xerox had made "just one honest mistake" in interpreting the plan unreasonably in the first place.  It then follows that Xerox should get a second bite at the apple in saying how the plan should be interpreted, because after all their arbitrary and capricious first go at it was made in good faith.

I call BS.  The evidence clearly established, and Peter strongly argued during oral argument, that this was anything but an "honest mistake" on Xerox's part.  It was a well-thought out plan of denying these employees their pension benefits.  And with business allies on the court forming a majority, Xerox was able to prevail. 

Using my cultural cognition theory here, and applying my theory of psychological realism in labor law, I might say that the cultural background of these five conservative justices did not permit them to believe that a company like Xerox would set out to screw its employees.  I am not similarly constrained by that worldview.

In any event, not only was justice not served today, but as we wrote in our law professor amicus brief:

[Xerox’s] approach in this case is an example par excellence of giving the plan administrator a second bite at the apple. In fact, based on the [Xerox's] theory in this case, they appear to contemplate serial attempts of interpreting the plan until they can convince a court that their interpretation is no longer arbitrary and capricious. Amici believe strongly that such a race-to-the-bottom not only disserves employees like Respondents in this case, but is also contrary to the very purposes of ERISA - to protect “employees’ justified expectations of receiving the benefits their employers promise them.”

[This case] also takes place against a background where employees who are retired or close to retirement do not have the luxury to wait until the plan administrator finally gets it right. In this case alone, many of the original Respondents have already passed away during
the now ten years of this litigation.

In all, what a shanda.


April 21, 2010 in Pension and Benefits | Permalink | Comments (2) | TrackBack (0)

"Mere Preparation"

New Image 4. Solicitation/Preparation

Perhaps the most conceptually problematic section in this entire chapter is § 8.04, which views the duty of loyalty as breached by an employee's competition with her employer while still employed.  As might be expected, the problem is less whether there is a duty here than what constitutes competition. 

The section is true to the common law insofar as it maintains a distinction between solicitation and recruitment of other workers, customers or vendors while the departing employee is still employed (prohibited) and “mere preparation” for departure (permitted).

That’s not necessarily a compliment for the draft -- the cases drawing the line are incoherent, and the draft tries to map them rather than craft a more sensible and easily administered rule. For example, permitted preparation includes “announcing the employee’s impending departure” but the draft also allows “a group of employees may agree among themselves to start or join a competing business.” Cmt. b.  One is tempted to ask how the group formed if no one solicited anyone, a question that assumes even more significance in light of the statement that the group can’t “urg[e] the departure of employees who are not part of the group.” Maybe if the group is successful in its proselytizing, the person urged becomes part of the group?

The draft, drawing heavily on the cases, suggests a number of (apparently non-exclusive) factors in “drawing the line between permissible preparation and impermissible recruitment”:

• Status of the “recruiter” (maybe the wrong word since it signals the answer)
• Whether the resulting departures cripple the employer’s business
• Whether there are “formal offers of employment” and
• Whether departing employees had independent reasons for leaving

Cmt b.  But if the real distinction is between competing and preparing, the formal offer factor seems under-inclusive --  the question is not whether an offer is “formal” but whether it was reasonably believed to be an offer during employment. 

The other three seem over-inclusive.  Thus, a very high level employee might only "announce" (even if she were pretty confident that others would soon follow her); similarly, enough departures might cripple the employer’s business even if the original departer did nothing more than announce her future plans while still employed); and other workers might well leave for reasons related to the new opportunity (and thus not independent) but still not have been solicited during employment.

In short, the law is a mess in this area, and the draft doesn’t improve it.

Not that I think the issues are simple. Take the possibility that a coordinated departure might "cripple or seriously threaten" an employer. That might be a reason to limit a right to prepare to compete, but why then broadly allow a group to agree among themselves? The cases talking about crippling the current employer often seem to focus on the employees' intent -- whether it's to harm the employer or just create a viable competing business. But intent is a pretty unsatisfactory concept in this setting (there's likely to be bad blood in any departure and enough departures are likely to pose a problem for any employer.

The draft (and the cases) seem to be trying to carve out a zone of safety for employees' actions while they are still employed. I applaud the effort, but the result of this formulation is not an easily adminsitered safe harbor. It's pretty much the same minefield as the current common law. 


April 21, 2010 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

More Random Musings on the Draft Restatement

New Image
3. Negative Value Confidential Information

More problematic is § 8.02’s explicit statement that a disclosure of confidential information is actionable even when not used to the advantage of a competitor. The draft speaks of information having “negative value in the sense that disclosure could hurt the employer’s business . . . not necessarily to the advantage of a competitor.” Cmt. b.  To make the point, Illustration 3 imagines a supermarket hiring two “young people who were recently released from a juvenile corrections facility.”  The store believes that knowledge of this would cause some customers to shop elsewhere. This means that,the information is commerically valuable and thus will be protected against disclosure if it meets the other requirements of the section -- the employer takes reasonable measures to keep in confidential and it's neither generally known nor readily obtainable by proper means.

There is a lurking tension between this aspect of Chapter 8  and the ALI-approved public policy tort section. At the very least, the tension should be addressed, Much whistleblowing consists of disclosure of confidential information (if the term is broad enough to include negative value info).

Now, I want to be clear that I’m not claiming that disclosure that Joe the Deli Guy had been in juvie is protected by the public policy tort. But  a Venn diagram of the conduct proscribed by § 8.02 and that prohibited by § 4.02 would show some overlap. This is especially true since § 4.02 protects not only reporting illegal conduct but also reporting conduct reasonably and in good faith believed to be illegal. Suppose, for example, a bank worker reported conduct he reasonably thought to be fraudulent, but which wasn't, and which was also confidential information within the meaning of § 8.02?


April 20, 2010 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

Monday, April 19, 2010

Denniston on Oral Argument in Supreme Court Quon Privacy Case

4United States Supreme Court 112904 The U.S. Supreme Court heard today arguments in City of Ontario v. Quon (08-1332) (the podcast of the whole argument is available at SCOTUSVBlog).

At issue in the case is whether individuals who send text messages to a public employee’s government-issued pager can reasonably expect that their messages will not be reviewed by the government.

Lyle Denniston of SCOTUSBlog produced this analysis of the Quon oral argument:

Justice Ruth Bader Ginsburg may have spoken for the entire Supreme Court on Monday when she offered a simple scenario: if the government hands out personal messaging devices to its workers, calls a meeting to put limits on their use, and tells the workers that their e-mails are going to be monitored, why would the employees think their messages were private?  The obvious answer would seem to be that it was not reasonable for them to think that.  Since there seemed little dissent from that proposition, a major case on electronic privacy in the workplace could well end with a Digital Age victory for the government as employer.

Sgt. Jeff Quon of the Ontario, Calif., police department and his texting partners drew a little sympathy from the Justices during the oral argument in Ontario v. Quon (08-1332), but it was nowhere near enough to indicate that they will gain a constitutional right to privacy in the e-mails they exchanged on the sergeant’s SWAT team pager.  While the Court did not seem tempted to rule that a government employee never has any right to expect privacy in any message on a government-provided pager, it might go far to limit that right, especially in police departments or other agencies where the workers are given the pagers mainly for emergency use.

What mainly seemed to overwhelm Sgt. Quon’s hopes for privacy were the facts in the case, at least as the Court’s members filtered through those facts and emphasized the ones that ran against his privacy claims.  Chief Justice John G. Roberts, Jr., did suggest that, from Sgt. Quon’s point of view, he may well have gotten at least mixed signals from a superior that suggested to him that what he texted with wife, girlfriend and team colleague might be shielded from supervisors’ eyes.  But, as the lawyer for the city of Ontario reminded the Chief Justice, whether that hope on his part had constitutional protection did not depend on what he believed, but rather on what society was prepared to endorse.  And, from what most Justices said, it hardly seemed that society is willing to let a SWAT team member use a pager without monitoring.

Interestingly, I wonder whether this case will end up being consistent with the public employee privacy case of Von Raab.  There, it was drug testing of customs agents, but they too were in sensitive positions (interdicting drugs) and their expectation of privacy was deemed to be at a minimum.

So although I agree with Lyle that this case might not provide much privacy protections for police officers and others who are important to public safety, I do not think such a decision would necessarily limit other privacy claims by non-safety-oriented public employees like office workers or clerks. In fact, I don't know if this case will add much at all to the basic balancing test between employee privacy interests and governmental interests that we used in most public employee constitutional rights cases.


April 19, 2010 in Public Employment Law | Permalink | Comments (2) | TrackBack (0)

Supreme Court Grants Cert in USERRA Cat Paw's Case

Cats_paw Ross Runkel's LawMemo has news of the U.S. Supreme Court granting cert. in a USERRA cat paw case.  You may recall that the Court previously took cert. in another cat's paw case in 2007 in the Title VII context (BCI Coca-Cola Bottling v. EEOC), but that case was never heard by the Court because it settled.

Here is the 4ll from Ross on Staub v. Proctor Hospital (US Supreme Ct cert granted 04/19/2010)

The issue: "In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?"

Staub sued the employer, alleging that he was discharged in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Staub prevailed after a jury trial. The 7th Circuit reversed. Staub proceeded under the "cat's paw" theory. Under that theory, the discriminatory animus of a non-decisionmaker is imputed to the decision maker where the former has singular influence over the latter and uses that influence to cause an adverse employment action.

The 7th Circuit held that, prior to admitting evidence of nondecisionmaker animus, a trial court "should determine whether a reasonable jury could find singular influence on the evidence to be presented." The court reasoned, "[a]llowing the jury to entertain the cat's paw theory and decide whether there was singular influence, but only upon a prior determination that there is sufficient evidence for such a finding, is consistent with Federal Rule of Evidence 104(b)." The court concluded that the trial court erred in neglecting to make this primary determination, and found that there existed insufficient evidence of singular influence to allow evidence of nondecisionmaker animus to be presented to the jury.

Here is what Ross predicted back in 2007 about the BCI cat's paw case:

The Court has previously held that the common law of agency is the way to go, and that Title VII's text dictates this. Both the supervisor and the HR manager were BCI's agents. It is the racial motivation of employee-agents that determines the racial motivation of BCI.

The supervisor was acting within the scope of his employment (and exercised authority delegated to him by BCI) when he made reports to the HR manager, so his alleged bias is imputed to BCI.

Of course, EEOC has to prove that the supervisor's action was a cause of Peters' discharge. The HR manager's independent investigation arguably broke the chain of causation. However, that's a question of fact which the Supreme Court will not decide. There is enough of factual dispute for the EEOC to avoid losing on summary judgment, so the Court will rule for EEOC.

I still agree. Although there is a slight change in the Court's make-up (with Sotomayor replacing Souter), and this case is not on summary judgment but on a jury verdict for plaintiff, I still think the Court will uphold that verdict for plaintiff by a 7-2 margin (Thomas and Alito dissenting).  The jury clearly believed here that the employer was swayed by the unlawful intent of the supervisory employee.


April 19, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (1)

Draft Restatement on Employee Duty of Loyalty


If May approaches, it must be time for the ALI and the Restatement of Employment Law. Although the macro debate about the value of the enterprise has died down in the wake of the Institute’s approval last year of three chapters, we can expect continued discussion at the micro level for the indefinite future. What’s teed up for this May’s Annual Meeting is Chapter 8, Employee Duty of Loyalty and Restrictive Covenants. Dean Stewart Schwab is primarily responsible for the draft.


For what it’s worth, I generally applaud this chapter, but, perhaps needless to say, I will raise have a few questions in this and subsequent posts. I make no attempt to be comprehensive, but I do invite comments on this or other aspects of the draft.


1. Scope


The title of the Chapter testifies to its narrowed scope, which started out as “Employee Responsibilities.” This obviously makes the chapter more manageable but reduces its comprehensiveness. And sometimes it shows. There’s a very abbreviated discussion of the employee’s duties to perform contracts and her duty of care, with a sweeping statement that these two duties are enforced for at-will employees by disciplining or discharge and they do not "ordinarily give rise to tort of judicial contract remedies….” Cmt. a. I do agree that (other than some exceptions specified in the draft), employers rarely sue for mere failure to perform, but I’m not persuaded that there's such a broad general principle.


2. Confidential Information


Section 8.01 speaks to the duty of loyalty, which can be breached by disclosing or using “confidential information” or by competing. “Confidential information” is defined in § 8.02 and tracks current definitions of trade secrets.  The point of the section is that the defined information can’t be used or disclosed even absent a non-disclosure agreement binding the employee.


The draft is employee-protective insofar as it explicitly excludes from the definition information that “derives[s] from the general experience, knowledge, and skill employees acquire in the ordinary course of their employment.” § 8.02(d). Obviously, the breadth of the exclusion turns entirely on the meaning of “general,” and the draft is not especially enlightening on when a piece of knowledge is general. Indeed, I was left scratching my head about Illustrations 11 and 12. The latter specifies that what an air traffic controller learns in the course of using new state-of-the-art equipment is not confidential information but the former says that what a scientist learns about “the methods and special materials” of manufacturing spacesuits is. Still, this is the terminology of the cases and the adoption of the language should at least give a court pause before labeling everything an employee works on as confidential information.

To be continued....



April 19, 2010 in Employment Common Law | Permalink | Comments (1) | TrackBack (0)

NPR on the Paycheck Fairness Act

Paycheck NPR ran an extensive story this morning on the pending-in-Congress Paycheck Fairness Act.  The Act would amend the Fair Labor Standards Act by, among other things, forbidding employers from retaliating against employees who discuss their salary with each other.  The idea is that women such as Lilly Ledbetter often don't even know that they are being underpaid compared to their male counterparts.  The Act would be administered by the Department of Labor, and would require employers to show that wage differentials are job-related and consistent with business necessity.

Another way to accomplish the goal would be to amend the National Labor Relations Act to make it clear that employee discussions of salary are protected concerted activity.  Doing it this way would not require a new administrative structure, and would have the additional benefit of increasing the stature of the NLRA.


April 19, 2010 in Labor Law, Wage & Hour | Permalink | Comments (3) | TrackBack (0)

Recently Published Scholarship


  • Michael Waterstone, Returning Veterans and Disability Law, 85 Notre Dame L. Rev. 1081 (2010).
  • Kenneth R. Swift, The Public Policy Exception to Employment At-Will: Time to Retire a Noble Warrior?, 61 Mercer L. Rev. 551 (2010).
  • Lisa M. Durham Taylor, Untangling the Web Spun by Title VII's Referral and Deferral Scheme, 59 Catholic U. L. Rev. 427 (2010).
  • Margaret H. Lemos, The Consequences of Congress's Choice of Delegate: Judicial and Agency Interpretations of Title VII, 63 Vanderbilt L. Rev. 363 (2010).
  • Jessica L. Roberts, Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63 Vanderbilt L. Rev. 439 (2010).
  • Richard H. McAdams, Richard Epstein and Discrimination Law, 44 Tulsa L. Rev. 839 (2009).
  • Edward I. Zelinsky, The Aftermath of the Cash Balance Controversy: Applying the Contribution-Based Test for Age Discrimination to Traditional Defined Benefit Pensions, 29 Virginia Tax Rev. 1 (2009).
  • Steven I. Locke, The Fair Labor Standards Act Exemption and the Pharmaceuticals Industry: Are Sales Representatives Entitled to Overtime?, 13 Barry L. Rev. 1 (2009).

April 19, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)