Friday, September 3, 2010

August Unemployment Numbers

Hiring The Department of Labor has released its August employment numbers and things seem to be somewhat mixed.  The unemployment rate moved up slightly to 9.6%, from 9.5%.  Overall, there was a loss of 54,000 jobs, but that was driven mainly by a loss of government (especially Census) jobs.  In contrast, there was an increase of 67,000 jobs in the private sector.  To help decipher these numbers, I'm going to quote part of a summary of the data done for an undergrad econ class by my favorite labor economist:

The bottom line is that there was little change, but slightly better than expected.  Based on the establishment level data, employment declined modestly [unemployment numbers can come from either household or establishment data; the household (CPS) data catches trends more quickly than the establishment data, but is also far more variable because of smaller sample size].   If one measured employment changes off the household survey (the CPS) rather than the larger establishment survey, the news was a bit more encouraging (an increase in employment of 290 thousand, but also an increase in the number of unemployed by 261 thousand, as more people moved into the labor force).  The CPS also showed a decrease in the number of long-term unemployed.  In short, there appears to be movement in the right direction, but at a rate far too slow to make up for the several million jobs lost during the recession.


September 3, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • William R. Corbett, Babbling About Employment Discrimination Law: Does the Master Builder Understand the Blueprint for the Great Tower?, 12 U. Pa. J. Bus. L. 683 (2010).
  • Ronald Turner, Annual Survey of Texas Law: Employment Law, 63 SMU L. Rev. 537 (2010).
  • Justin A. Hinton, In Vitro Fertilization and the Pregnancy Discrimination Act of 1978: How Far Can the Courts Expand the Coverage of the PDA to Protect Reproductive Technology?, 32 UALR L. Rev. 515 (2010).
  • Molly D. Edwards, The Conceivable Future of Pregnancy Discrimination Claims: Pregnancy Not Required, 4 Charleston L. Rev. 743 (2010).
  • Todd Cole, The Ministerial Exception: Resolving the Conflict Between Title VII and the First Amendment, 4 Charleston L. Rev. 703 (2010).

September 3, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: BJELL

Not listening

Berkeley Journal of Employment and Labor Law
Volume 31, Number 1, Winter 2010


  • Brishen Rogers, Toward Third-Party Liability for Wage Theft, p. 1.
  • Roger C. Hartley, Freedom Not to Listen: A Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings, p. 65.
  • Elizabeth J. Kennedy, The Invisible Corner: Expanding Workplace Rights for Female Day Laborers, p. 126.
  • Vanessa R. Waldref, The Alien Tort Statute After Sosa: A Viable Tool in the Campaign to End Child Labor?, p. 160.

September 3, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 2, 2010

Protection for Union "Shame On" Banners

NLRB In another case officially issued on Member Schaumber's last day on the NLRB, the Board has protected  union banners that were alleged to be unlawful secondary pressure.  In Eliason v. Knuth, at issue were some "Shame On" banners placed near employers who were using contractors with which the union had a dispute.  The question was whether the banners violated Section 8(b)(4)(ii)(B).  Or put another way, are the banners equivalent to picketing, which the Board has treated as unlawful threatening or coercive conduct?  The majority--looking to the text of 8(b)(4)(ii)(B), congressional intent, and the desire to avoid a First Amendment problem--said the peaceful and stationary banners were not threatening or coercive.  Members Schaumber and Hayes vigorously disagreed, arguing that the majority was giving unions too much power, such as the ability to engage in secondary boycotts using the exact same messages that would be unlawful if attached to a picket sign. 

Perhaps this is a sign that the rat will be back!

Hat Tip:  Justin Keith & Patrick Kavanagh


September 2, 2010 in Labor Law | Permalink | Comments (1) | TrackBack (0)

SALT Asks AALS to Honor SF Hilton Boycott

Aals_logoThe Society of American Law Teachers (SALT) sent a letter yesterday to Susan Prager, executive director of the Association of American Law Schools, asking AALS to consider other options for its annual meeting scheduled in San Francisco this January.

Here is a snippet:

The Society of American Law Teachers (SALT) calls on the Association of American Law Schools (AALS) to honor the boycott of Hotel Employee and Restaurant Employee (HERE) Local 2 at the Annual Meeting in San Francisco in January 2011. The main conference hotel, the Hilton San Francisco Union Square, along with other hotels in San Francisco, are under boycott by HERE; their multinational corporate parents remain intransigent on wage and health care benefit issues affecting some of the lowest paid workers in our economy. SALT makes this call to stand in solidarity with those who work at these hotels where the AALS is currently scheduled to meet. HERE has been trying to negotiate a fair contract for over a year while the multinational corporate employers continue to seek more from the workers in health care premiums and wage concessions, even while these chains outperform Wall Street expectations. Because hotel chains have great economic resources and are frequently owned by multi-national corporations, it is imperative that unionized workers in hotels rely upon sources of leverage beyond withholding their own labor in order to obtain fair agreements. Cooperation from organizations holding conventions is particularly significant to their efforts to obtain economic justice.

Of course, I have no idea what the response will be, though AALS did moves it meeting from San Francisco to Washington D.C. in past years because, in part, of labor concerns.  I look forward to learning what various sections within AALS will do in light of the current boycott.  In the past, some sections have moved their programs and members out of the impacted hotel and held their programs elsewhere.


September 2, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

NY Enacts Domestic Workers' Bill of Rights

Domworkers On Tuesday, New York Governor Paterson signed the Domestic Workers' bill of rights into law. The new statute provides for overtime pay protections, guarantees time off eventually with pay, and provides protections from sexual harassment. It also provides a cause of action for domestic workers to sue to enforce it. See this AP story and this NY Daily News Story for more details.

It's a great achievement, but there seem to be big obstacles to enforcement given the structure of the industry, the lack of centralization of employment, and the number of workers that are paid "off the books." We'll all have to stay tuned to see how things develop.


September 2, 2010 in Employment Discrimination, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Eleventh Circuit Rejects Coming to Rest Doctrine and Defines "Materials" for FLSA Cases

GavelThe Eleventh Circuit issued an important decision this week in six cases consolidated for appeal on the scope of enterprise coverage under the Fair Labor Standards Act in Polycarpe v. E & S Landscaping Serv., Inc. There was no dispute that the employers here were employers of the employees or that they failed to pay minimum wages or overtime for hours worked over forty for employees whose jobs would not be classified as exempt. Rather the dispute here was about whether the FLSA covers the employers as enterprises or the employees as individuals.

The FLSA covers employees engaged in interstate commerce or employees who are employed by an enterprise engaged in interstate commerce, in the production of goods for commerce, or who "handl[e], sell[], or otherwise work[] on goods or materials that have been moved in or produced for commerce." Here, the employers did not sell goods, but instead mostly sold services--installation of home fixtures or landscaping, for example. The district courts in Florida held that the employers weren't covered as enterprises because they sold services, not goods, and any goods that they used in providing those services were purchased in Florida, where they had "come to rest" within the state where they were bought--those goods had lost their interstate commerce character.

The court of appeals reversed. First, it held that the "coming to rest" doctrine was not consistent with the FLSA's language. The statute uses the past tense: it talks about goods or materials that have been moved in or produced for commerce. So the fact that they have gotten to the place where they will be sold to the consumer is irrelevant.

Then the court dealt with the question of when employees will have handled goods or materials that had been moved in interstate commerce. The employers here were not selling goods, although the installation employers did occasionally provide parts for the thing they were installing during the installation services. The court went into great detail to define goods and materials. A good, it concluded, was a product or a component piece of a product that was to be sold. Thus, those parts that were included as part of the installation constituted goods for purposes of the statutes. In a very thorough statutory analysis, the court then concluded that materials were different from goods and that the term meant tangible items used to create products or used to provide services. With those definitions, the court held that both the installation companies and the landscaping companies handled materials. The court remanded the cases for the district court to determine whether those materials (and the goods used by the installers) had been moved in interstate commerce.

If you are looking for a good case to explain some of the intricacies of commerce and the commerce clause's reach, or for a good case for the rules and method of statutory construction, you should take a look.


September 2, 2010 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Corporate Pension Deficits in the US Reach An Ominous Milestone

Graphup The very fine Global Pensions site has an article today featuring a study by Mercer on the current deficits being run by Fortune 1500 company pensions:

Pension plans of S&P1500 companies are shouldering deficits of a combined $506bn, the largest recorded deficit in their history, according to data by Mercer.

The deficit translates to a funded status of 71% at the end of August, down from 84% at the start of the year. The shortfall is more than twice the 2009 deficit of $247bn, Mercer said.

Funding levels were crippled by falling equity markets coupled with low bond yields. The S&P500 was down 5% in August and AA bond yields used to discount liabilities were 4.94% at the end of August. Yields were the lowest they've been in a decade, Mercer said. Rates for high quality corporate bond yields have been on a steady decline since at least June 30 when they were 6.79%.

Recent legislation passed by Congress will help with some funding and "smoothing" issues, but the underlying trends are not good and the next year will likely bring a whole new crop pension plan terminations, putting even more pressure on the Pension Benefit Guaranty Corporation (PBGC).

As pressure mounts on employers to terminate retirement income programs, I and others believe the case is becoming stronger for a mandatory, national pension program which may be based on employer contributions, an expansion of Social Security, or something in between.


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

Flip-Flopping, Donning-and-Doffing, and Deference

Shocked Jeff posted Tuesday on the Obama NLRB, noting how shocked -- shocked! -- Member Schaumber is that the Obama Board is reversing Bush II Board precedent (which of course reversed Clinton Board precedent, which reversed Bush I / Reagan Board precedent...).  Michael Fox, over at Jottings by an Employer's Lawyer, notes that a similar drama is playing out over the Department of Labor's donning and doffing rules.  He quotes the Sixth Circuit opinion, released Tuesday, of Franklin v. Kellogg Co. (6th Cir. 8/31/10) in which the court gives little deference to agency flip-flops:

[A]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation.

The problem with this approach is that it gets us no closer to a consistent application of law.  It trades agency flip-flopping every 4-to-8 years for a fragmented approach in which federal agency law differs by federal judicial circuit.  Neither is good.


September 2, 2010 in Labor Law, Wage & Hour | Permalink | Comments (2) | TrackBack (1)

Recently Published Scholarship: ABA JLEL


ABA Journal of Labor & Employment Law
Volume 25, Number 3 (Spring 2010)


  • Christopher Hexter, Wesley Kennedy, Alexia Kulwiec, Peter Janus, Todd Sarver, and Steven Wheeless, Twenty-five Years of Developments in the Law under the National Labor Relations Act, p. 299.
  • Maurice Wexler, Charles C. Warner, Gary R. Siniscalco, John L. Quinn, and Adam T. Klein, The Law of Employment Discrimination from 1985 to 2010, p. 349.
  • Theodore J. St. Antoine, ADR in Labor and Employment Law During the Past Quarter Century, p. 411.
  • Paula G. Ardelean, Mitchell C. Baker, Brian D. Hall, Wynter Allen, Thomas F. Hurka, Alison T. Vance, and David J. Carr, The Development of Employment Rights and Responsibilities from 1985 to 2010, p. 449.
  • Marley S. Weiss, International Labor and Employment Law: From Periphery to Core, p. 487.
  • Tyler Wiese, Seeing Through the Smoke: 'Official Duties' in the Wake of Garcetti v. Ceballos, p. 509.


September 2, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 1, 2010

More NLRB Muscle Flexing

NLRB This is round #2 of what will probably be several posts on notable NLRB decisions that are being officially issued as Member Schaumber's term expired.  Here's today's installment:

Int'l Assoc. of Machinists -- addressing whether union can require employees to make annual Beck right objections.  Board held in this case that the requirement was an unjustified and was a duty of fair representation/ 8(b)(1)(A) violation (with a dissent by Pearce on this finding).  Notably, this is not a per se rule; rather, unions can avoid a ULP by justifying such a requirement and showing that they minimized the burden on objecting employees.  Moreover, this rule will be prospective only.  Schaumber and Hayes wrote a concurrence/dissent stating that the NLRB doesn't give enough respect to Beck rights and disagreeing with the majority's finding that the rule was not discriminatory.

Hacienda Hotel -- addressing whether dues checkoff provisions are covered by Katz's unilateral change doctrine.  This one gets complicated.  In 2000, the Board found a 8(a)(5) violation based on the employer unilaterally eliminating dues checkoff after the CBA expired.  The Ninth Circuit vacated and remanded.  In 2007, the NLRB found that there was no ULP.  The Ninth Circuit then vacated and remanded again.  (Feeling like a yo-yo yet?)  The court said the focus is whether dues checkoff is permissive or mandatory in a right-to-work state (if the latter, it can't be changed unilaterally).  The result on remand?  Nothing.  Because Becker recused himself, there was a 2-2 deadlock.  Thus, the NLRB applied existing precedent (dues checkoff is permissive) and dismissed the complaint.  Without a doubt, this issue will be back and will go the other way.  At least until there's no longer an Obama Board.

Voluntary Recognition and Successor Bar Press Release -- here is the press release inviting amicus briefs on these two issues that we mentioned in yesterday's post.

Hat Tip:  Patrick Kavanagh


September 1, 2010 in Labor Law | Permalink | Comments (0) | TrackBack (0)

FLRA's Most Improved Award

Flra As we've noted, the FLRA has had major morale issues for quite some time, although things started looking up recently.  Apparently the new efforts are working, as the FLRA was the most improved agency in the new best places to work in government rankings.   According to the Washington Post's report on the rankings:

Overwhelmingly, the driving factor in the agency's improved standing was the 418 percent surge in the score employees gave the agency's senior leadership. That's in keeping with the findings of the best places survey across government: "The 2010 survey for the fifth time in a row showed the primary driver in the federal space is effective leadership, and in particular, senior leadership." 

[Also] [i]t's impressive how often federal employees refer to their sense of mission when talking about their agencies. They want their service to count. In the case of the FLRA, statistics show tat the job is now getting done:

In fiscal 2009, the agency issued 215 decisions. That's nearly twice as many as from the two previous years combined. The pending case inventory has dropped more than 40 percent since February 2009, and the average waiting time of a pending case is down 35 percent. Staffing is up 10 percent from its lowest level of 118 in fiscal 2008, and the agency's budget is growing.

Hat Tip:  Barry Hirsch


September 1, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 31, 2010

The Obama NLRB Starts Flexing Its Muscles

NLRB Some of the last cases in which Member Schaumber took part in are now coming out, and there's some interesting ones.  Here are a few notables:

UGL-UNNICO -- granting review of election decision as means to reconsider successor bar doctrine (i.e., the Board is getting ready to reverse MV Transportation's rebuttable presumption of majority to support and go back to its St. Elizabeth's Manor rule, which had a approximately six-month bar).  The Board also invited briefs on the issue.  Check out Schaumber's scathing dissent, which indicates amnesia affecting his memory of September 2007 among other things.

Independence Residences -- the Board addressed the effect NY State's law against an employer using state funds to encourage or discourage union activity on an election.  Assuming that the state law is preempted, the majority concluded that it did not justify overturning the election.  This was based on the ability to use funds to oppose a union and--the most convincing to my mind--the fact that concluding otherwise would be grounds for invalidating all elections in NY (at least the ones that unions won) as long as the state law was in force.  Here's the Board's news release on the case.

Lamons Gasket -- requesting evidence of parties' experience with Dana Corp. (in which the Bush NLRB restricted the voluntary recognition bar).  The bulk of the opinion is Schaumber and Hayes' defense of Dana on the merits, and Liebman's response in seeking more info (although her opposition to Dana is no secret).

What I find particularly interesting is the degree to which that Schaumber in particular objects to even the potential of reversing Board precedent.  The flip-flopping is a well-known aspect of Board law and both sides have always screamed some about it when they're in the minority.  But in some cases, the Bush Board reversed several decades of unchanged Board law, so his objection to flipping cases only a few years old sounds especially hollow.

Hat Tip:  Patrick Kavanaugh


August 31, 2010 in Labor Law | Permalink | Comments (5) | TrackBack (0)

Monday, August 30, 2010

Aspiring Law Professors Conference at Arizona State Law

Conf Zak Kramer (Arizona State) writes to tell us that Arizona State is once again hosting its Aspiring Law Professors Conference for fellows, VAPs, clerks, and other law professor hopefuls. 

Here are some detail from the conference flyer:

Designed for Visiting Assistant Professors, Fellows and Clerks who plan to go on the academic teaching market, but valuable to anyone considering a move to teaching.

• Learn to succeed in the entry-level law teaching market
• Obtain an insider’s perspective on the appointments process from faculty who’ve been there
• Conduct a mock interview or mock job talk and gain feedback from law professors

Speakers include: featured speaker Dan Filler (Drexel) and Brannon Denning (Samford), Carissa Hessick, and Teneille Brown.


August 30, 2010 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Coke Cancels Health Insurance of Striking Workers; Workers Bring ERISA Suit

Coke About 500 Coca-Cola employees went on strike last Monday over charges of employee surveillance, intimidation, and bad faith bargaining. A day later, Coke responded by cutting off the strikers' health care coverage.  Coke's rationale, I assume, is that "benefits, like salary, are what you get for working, and if you're not working, we don't have to pay you."  The strikers, however, are calling foul:

"My wife had a kidney transplant two years ago. When Coke cancelled our health care, they cut off her anti-rejection medication.  This shows me that Coke doesn't care about its employees," said Bill Mauhl, a 34-year Coke employee, who works in the company's production facility in Bellevue.

Five of the strikers have filed a class-action ERISA suit against Coke.

Readers are invited to weigh in with comments.

Hat tip: Carol Furnish.  For more, see and the Teamsters press release.


August 30, 2010 in Labor and Employment News, Labor Law, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Recently Published Scholarship


  • Meredith M. Render, Gender Rules, 22 Yale J. L. & Feminism 133 (2010).
  • Michael G. Heyman, The Time Has Come for the United States to Ratify the Convention on the Elimination of All Forms of Discrimination Against Women, 9 Wash. U. Global Studies L. Rev. 195 (2010).
  • Paul R. Klein, The ADA Amendments Act of 2008: The Pendulum Swings Back, 60 Case Western Reserve L. Rev. 467 (2010).
  • George Steven Swan, The Law and Economics of ERISA and Fiduciary Duty, 36 Ohio N. U.L.
    Rev. 403 (2010).
  • Allie Robbins, Captive Audience Meetings: Employer Speech v. Employee Choice, 36 Ohio N. U.L.
    Rev. 591 (2010).

August 30, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Head Scratcher

New Image In a recent opinion out of the D.C. Circuit,Aliotta v. Bair,  the court found inadequate the plaintiff’s statistical showing of age impact during a reduction in force by the FDIC.  The plaintiffs argued both systemic disparate treatment and disparate impact, focusing on a series of downsizings. Key to their claim was the employing agency’s actions in 2004-05.  As is typical in large scale reductions in force, the FDIC offered a buy-out prior to any involuntary terminations; a number of employees accepted, in the process waiving their right to sue. When the RIF stage was reached, there were “53 involuntary separations, 7 retirements in lieu of involuntary separation, and 3 resignations in lieu of involuntary separation.” Analyzing this group, the defendant’s expert found the average age of the relevant unit to have actually increased as a result of the RIF. Obviously, without an age impact, neither systemic claim could be made out.

Needless to say, plaintiff’s expert took a different view. Instead of looking merely at the 63 individuals who lost their jobs in the last round, he included employees affected by both the pre-RIF buyouts and the actual RIF. The theory was that this was the group targeted by the agency, and, looking at this group, relevant unit employees above the age of 50 were separated at 139.8% the rate of under-50 employees.  In short, there was an age impact if one group was used, but not if another one was, and the court found that plaintiffs looked to the wrong group.

The opinion is confused in a number of respects, and one might question both the employer’s focus on average age and  the plaintiffs’ focus on only 50+ workers.  But my present concern is with the court’s rejection of plaintiff’s statistical showing:

Both class member [treatment and impact] claims are premised almost entirely upon the statistical findings of their expert, Dr. Seberhagen. In order for class members to show a disparate effect on older workers, they must combine the effects of the involuntary terminations resulting from the 2005 RIF with the effects of the voluntary retirements from the 2004-05 buyout offers. But, as the district court properly concluded, class members cannot include as evidence of discrimination the statistics of a group of employees who, because they voluntarily accepted a buyout, suffered no adverse employment action. Without the inclusion of the voluntary terminations, class members' claims of discrimination collapse. The statistical impact of the involuntary RIF terminations reveals a disparate effect on younger, not older, employees.

(citations omitted).

But surely, this has to be incorrect as to disparate treatment. It is true that the class can’t recover for putative members who have released their claims. But the point of statistical proof for systemic treatment claims is that the employer targeted older workers because of their age. The fact that some members of this group might have accepted a buyout wouldn’t change the reality (if there were one) that older workers were targeted. 

Having said that, I’m not sure the court was ultimately wrong. Most obviously, I don’t assume that a statistically significant disproportionate impact of a downsizing plan necessarily shows intent to discriminate (the employer offered non-age reasons for its program).  But more critically for my present point, the appropriate comparison group from which to infer intent to discriminate consists of those who are targeted by a downsizing plan, not merely those who are formally laid off at the end of the process. After all, if employees were told that those over 50 would be fired if they did not accept retirement, we would not find it much of a defense that most chose a severance package (and thereby waived their right to sue).

Why the court might be right in result, however (if incorrect in focusing on whether there was an adverse employment action) is that the buy-out wasn’t offered merely to those who accepted it. It was offered to a bigger group, but was apparently more attractive to workers over 50. So maybe neither the defendant nor the plaintiffs had the right comparison group for disparate treament. This is all complicated by a number of factors, including the possibility that constructing a scheme that is more attractive to older workers might itself show age bias, but may be shielded by the ADA’s approval of early retirement incentives.

As for disparate impact, the question at first glance seems easier.  Wards Cove (presumably applicable to the ADEA) seems to require that plaintiffs’ identify the part of the process that caused the impact; proof of bottom line impact is not enough.  So viewed, the people affected by the buy-out per se have no claim: their may have been an age-based adverse affect, but they waived their rights. And the people involuntarily laid off can’t show an age impact from that part of the process. Or could it be argued that, since the whole process was designed to result in a smaller workforce, the two parts can't be “separated for analysis” (at least for those riffed)? Under this view, we should look at the bottom line (assuming that the "incapable of separation for analysis" prong of the 1991 CRA were to apply to the ADEA, perhaps as an interpretation of Wards Cove).

Some of these problems can be hypothesized away if we assume that the question arises under Title VII for, say, sex discrimination. In that setting, we would have to address the proper group for both systemic disparate treatment and disparate impact without the ADEA's complications. At least from a disparate treatment perspective, it seems that the effects of the entire scheme on women should be probative of whether there was intent to reduce the number of women (even if, as I suggested above, there might be other explanations for such a sex--skewed results). 

Thanks to Steve Willborn for correcting me on a number of points in a prior version of this although I doubt he fully endorses even this version!


August 30, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Secunda Continues to Search for Pickering Rights

Secunda Our own Paul Secunda (Marquette) has consistently argued (see articles here and here) that the free-speech rights of public employees are being significantly eroded.  In an article just posted on SSRN, Paul puts that argument into a broader constitutional perspective in Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.  Here's the abstract:    

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the nature of the subsidy argument in the government as employment context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as it own and may regulate it willy-nilly. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standards, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to assume the role of the vanguard of the citizenry, protecting fellow citizens from government fraud, waste, and abuse.


August 30, 2010 in Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

A Kolben 2-Fer

Kolben Kevin Kolben (Rutgers Business School), one of the foremost authorities on the effect of labor provisions in trade agreements, has just posted on SSRN a pair of articles.  The first is A Development Approach to Trade and Labor Regimes, forthcoming 45 Wake Forest L. Rev.  Here's the abstract:
While the World Trade Organization has effectively rejected the linkage of labor and trade at the multilateral level, labor provisions have become a standard component of U.S. bilateral and regional free trade agreements. How these provisions ought to be designed, however, continues to be a subject of intense debate.This Article argues that trade and labor regimes should be oriented toward catalyzing and reinforcing the development functions of labor regulation, and toward creating institutions that further labor-development objectives. These objectives include expanding worker capabilities and promoting democracy and citizenship both in the workplace and in the nation-state. My goals in this Article, however, are broader than promoting a particular approach to trade and labor regimes. I also seek to place the subject of labor regulation, both domestic and transnational, more squarely into the development discourse, and conversely place development into the labor regulation discourse.
Kevin's second article is The WTO Distraction, forthcoming Stanford Law & Policy Rev.  Here's the abstract:
This Article argues that the desire and efforts to incorporate labor standards into the WTO framework are misplaced. While this argument has often been made on economic grounds by scholars who oppose linkage more generally, this Article puts forth legal, political, and institutional arguments that suggest that incorporating labor issues into the WTO regime is both unlikely and in fact less desirable than doing so in other trade contexts. A more fruitful and effective locus for linkage, it is thus argued, is bilateral and regionally based trade and labor regimes that a) are grounded in development objectives, and that b) integrate non-state, private regulatory regimes that harness the power of non-state actors to effectively regulate labor along global supply chains.

August 30, 2010 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, August 29, 2010

Call for LEL Papers: Rutgers Law Record

Rutgers The Rutgers Law Record is the Internet Journal of Rutgers School of Law - Newark.  In connection with its goal of facilitating quick dissemination of the legal community's initial impressions of emerging legal issues, the Record publishes online symposiums on a variety of topics each year. This coming Fall, the Rutgers Law Record will be publishing an issue dedicated to emerging and problematic issues in labor and employment law.

Here's the call:

We would like to include articles speaking to issues facing management and labor in the area of, enforcement actions under section 10J of the National Labor Relations Act, the impact of political ideology on the National Labor Relations Board, whether or not the National Labor Relations Act has failed to encourage collective bargaining, the Patient Protection and Affordable Care Act’s impact on management/labor relations, and other pertinent issues affecting the workplace.

For information on Law Record submission guidelines, we invite you to visit our website, Please note that the Law Record publishes articles that are shorter in length than most other legal journals.  We generally seek articles between 15 and 30 pages double-spaced, but will certainly consider longer articles as well.


August 29, 2010 in Conferences & Colloquia, Scholarship | Permalink | Comments (0) | TrackBack (0)