October 8, 2010
Duff on Union Salts as Administrative Private Attorneys General
Michael Duff (Wyoming) has posted on SSRN his forthcoming article in the Berkeley Journal of Employment and Labor Law: Union Salts as Administrative Private Attorneys General.
Here is the abstract:
The legitimacy of union salting campaigns has been debated frequently and bitterly over the last several years. Salts, the agents of these campaigns, are professional union organizers who apply for, and sometimes obtain – often surreptitiously – employment with non-union employers in furtherance of union objectives. Although recent decisions of the National Labor Relations Board (NLRB), under the influence of the W. Bush administration, have erected administrative and legal roadblocks to the conduct of salting campaigns, it is likely that the "Obama Board" will revisit the issues surrounding them. This article argues that salts have served a legitimate function by exposing unlawful, anti-union employment practices. Developing more fully a fleeting discussion in a recent NLRB case, the article explores whether salts' aggressive charge filing activity at the NLRB represents a permissible form of administrative private attorney general mechanism in aid of increased enforcement of the NLRA. Answering the question in the affirmative, the article contends that the NLRB should not reject salting activity on "moral" grounds, or based upon an overly restrictive view of the nature of union organizing.
This is an excellent article that I had the pleasure of reading in earlier drafts. The idea of an administrative private attorney general is compelling and one that could help the union movement gain some momentum as it continues to fights for workplace fairness. Check it out!
October 7, 2010
Zimmer on Unions and the Great Recession
Mike Zimmer (Loyola-Chicago) has posted on SSRN his new paper entitled: Unions & the Great Recession: Is Transnationalism the Answer?
Here is the abstract:
For at least 30 years, the union movement at a worldwide level has been generally downward. That trend has accelerated during the Great Recession. During that same period, economic inequality has grown significantly. The question this paper raises is whether the union movement can be proactively involved helping the recovery from the Great Recession with a stronger, more equal economic order. The public policy basis for unionism – that labor is not a commodity and that economic inequality is best redressed through freedom of association and collective bargaining – is well established in U.S. and international labor law. That public policy, however, is juxtaposed with the prevailing social, political and economic policy – neoliberalism favoring free markets including labor markets. As economic activity has become increasingly globalized, enterprise has been able to jump the barriers that had been set by national laws and national economies to organize operations around the world to take advantage of local conditions, including labor costs and standards. Thus, more and more employers can take advantage of a global labor market to find conditions most favorable to their businesses. An increasingly global labor market has significant impact on national and local labor markets. Labor unions are generally still trapped within the nations of their organization. Limited to operating in national labor markets, unions have lost the strength and breadth necessary to establish labor monopolies that operate to take labor costs out of price competition. The answer to the question this article poses is that the future of the labor movement may depend on the ability of unionism to reach across borders and operate transnationally. Some unions have taken some steps to go transnational, but a fundamental redirection toward transnationalism may be necessary if the union movement is to have a positive impact as the global economy recovers from the Great Recession.
This is a wonderful paper. I had the privilege of hearing Mike present in person at the Fifth Annual Colloquium on Current Scholarship in Labor and Employment Law a couple of weeks ago in St. Louis. What I love about it is the global approach to what has historically been thought of as mostly a domestic issue. Although Mike recognizes some of the challenges to internationalizing the union movement in this country, he sets forward some important and thoughtful advice for those who wish to see American unions once again take up the important fight against income inequality in this country and abroad. His past comparative labor and employment law writings make him ideally situated to tackle this critical issue.
October 6, 2010
NASA v. Nelson and Public Employee Informational Privacy
Yesterday, the United States Supreme Court heard oral argument in the public employee informational privacy case of NASA v. Nelson (oral tanscript here). Rather than reinvent the wheel on this one, I want to direct reader's to Prof. Lior Strahilevitz's (Chicago Law) excellent analysis of the oral argument on PrawfsBlawg.
Here are some highlights:
Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .
Justice Scalia's approach to the case seems fairly straightforward. Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy. He - and the other justices - recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs - Whalen and Nixon - do not squarely hold that the Constitution protects such a right. Scalia would therefore answer the open constitutional question and hold that limitations on the government's ability to ask its employees and job applicants questions do not arise under the Constitution . . . .
Chief Justice Roberts did not seem particularly interested in Justice Scalia's approach to Nelson. So my hunch is that the Scalia approach ultimately wins over just his own vote and that of Justice Thomas, along with perhaps Justice Alito. (Justice Alito asked one question that followed Scalia's lead, but most of his questions went in other directions.) With Justice Kagan recused, it is possible that five or six of the remaining justices will favor an approach that maintains ambiguity about the existence of the constitutional right but holds that NASA has not violated such a right even if it exists. That would require the other justices to develop a framework for determining when the Constitution is violated.
While Lior finds Justice Scalia's analysis persuasive, I am not similarly persuaded. I think the right of privacy previously recognized in other constitutional contexts also can be seen to include a right to informational privacy.
As to the scope of that right and how constitutional violations should be determined, I would suggest a balancing of interest approach that the Court has already established in both the Pickering First Amendment speech context and the Quon/Ortega Fourth Amendment privacy context. Indeed, in a previous paper, I have argued that where rights under the substantive due process clause have been violated (as in Lawrence v. Texas), the Court should adopt a balancing test to balance the public employee's right to privacy against the government's interest in running an efficient government service.
I agree with Lior that Justice Scalia will not have more than three votes and that may lead to a very splintered decision since Justice Kagan has recused herself. Maybe something like 3-2-3, with the issue of a whether a constitutional right to privacy exists not being decided (think of the Court's analysis in Quon in this regard).
Fox on Bifurcating Punis
Michael Fox, over at Jottings by an Employer's Lawyer, argues that, contrary to conventional wisdom, defense counsel generally should not ask to bifurcate punitive damages. Here's his analysis:
I [generally] opt against bifurcation. Basically, I don't want to be in the position of the defense attorney, having to come back after the jury has already hammered you, and your message is "now we get it." A hard sell when you have pushed hard to win on liability.
The clearest benefit is that you get to keep out the net worth of the company in the trial on the merits, but unless it is a stealth company, most jurors know that you are big.
I don't think that small benefit comes close to the cost of losing the opportunity of having it all settled in one bite, where if you have any jurors on your side, they probably have the best opportunity to effect a reasonable compromise.
And another factor I had not really considered is the anger of the jury. Sure, they are angry with you, because they found against you, including the issue, usually some sort of malice, that will justify punitive damages. But it's not that anger I am talking about.
It is the anger that they had to come back and do it again. Since jurors are not told about the possibility of punitive damages (at least in Texas), they are not aware when they answer that magical question a certain way they have just insured another day or two of jury service. Not exactly something that most of them are excited about.
Call for Articles for the American University Washington College of Law Labor & Employment Law Brief
Submissions are due January 1, 2011 and if accepted, will be published in April, 2011.
Ideal topics include, but are not limited to:
- Immigration policies affecting employers and employees
- Employees vs. Independent Contractors
- Employer obligations regarding job security and benefits
- Non-discrimination laws affecting immigrants and foreign employees
- Balancing employment law and immigration law
- The effect of Immigration Law & policy on the employment relationship and hiring policies
- Establishing policies for sponsorship of foreign nationals on visas
- Employee benefits for immigrants and foreign employees
- Termination of foreign nationals
If you would like to submit an article, comment, book review or a case study for consideration, please send your paper or a summary of your topic through ExpressO or directly to firstname.lastname@example.org.
More information can be found about the publication or article requirements at www.aulelb.org.
Recently Published Scholarship
- Kimberly A. Yuracko, The Antidiscrimination Paradox: Why Sex Before Race?, 104 Northwestern U. L. Rev. 1 (2010).
- Charles A. Sullivan, Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 Northwestern U. L. Rev. 411 (2010).
- E. Gary Spitko, Exempting High-Level Employees and Small Employers from Legislating Invalidating Predispute Employment Arbitration Agreements, 43 U.C. Davis L. Rev. 591 (2009).
- Kelly H. Sheridan, Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, 85 Wash. L. Rev. 517 (2010).
O'Neil on Noncompetes in a Down Economy
Kate O'Neill (U. Washington) has just posted on SSRN her article 6 Hastings Bus. L.J. 83 (2010)) her timely article 'Should I Stay or Should I Go?' - Covenants Not to Compete in a Down Economy: A Proposal for Better Advocacy and Better Judicial Opinions. Here's the abstract:
This article critiques the use of the contract consideration doctrine to differentiate between employee covenants not to compete that are reasonable and should be enforced and that that are not. The focus is on the particular difficulties created when the nominal consideration for a covenant is the offer of or continuation of an employment at-will. The article is designed for advocates and for judges. It provides an overview of relevant theoretical literature and a detailed critique of several cases. It should interest those concerned with the protection of intellectual property by contract and those interested in legal rhetoric.
October 5, 2010
Call for Survey Participants
Are you an attorney who has practiced employment discrimination, did you take a class on employment discrimination in law school, or are you a third-year law student who has? If so, Erica Drew, a graduate student at Florida International University would like you to take a survey. Here is what she sent us:
My name is Erica Drew and I am a graduate student at Florida International University, collecting data for my Masters Thesis. This research is being supervised by Dr. Vish C. Viswesvaran, Director of the Industrial/Organizational Psychology Program at FIU.
The purpose of this research is to gain perspective on how attorneys make decisions in employment discrimination cases involving unintentional discrimination. I hope that this research will inform organizations, practitioners, and attorneys of selection procedure best practices.
If you decide to participate, you will be asked to read a short vignette and complete a questionnaire. No identifying information will be collected, so rest assured your identity will remain anonymous. This study should take about 15-20 minutes of your time.
If you are willing to participate please click the link below. Thank you for your time and I sincerely hope you will consider participating! If you have any questions or would like the results of this study sent to you, please contact me at email@example.com.
IN ORDER TO PARTICIPATE YOU MUST BE A 3RD YEAR LAW STUDENT OR A PRACTICING ATTORNEY WHO HAS EITHER TAKEN AN EMPLOYMENT LAW COURSE OR PRACTICED EMPLOYMENT/LABOR LAW.
Here is the link:
Sounds like an interesting project! I'll be taking it and asking for the results, which hopefully Erica will allow me to post.
October 4, 2010
Bales Elected to ALI
Many congratulations to our own Rick Bales (N. Ky.-Chase), who has been elected to the American Law Institute (ALI). His nomination was sponsored by me, Charlie Sullivan, and Stewart Schwab. Rick is a wonderful teacher and scholar (and friend to manyof us). His dedication to serving the interests of the labor and employment law community is legendary. I expect Rick will become quickly involved with helping the ALI shape the Restatement on Employment Law.
If any other readers of Workplace Prof Blog have been similarly elected, let me know so I can post the good news.
Rats Migrate from NY to DC
The Washington Post reports that demand for "Scabby" is so high in the D.C. area that unions have to plan ahead to use him (her?):
A labor union in Washington will on occasion be upset with somebody. Contract negotiations go awry. Nonunion workers get hired. At these moments, you need a symbol. You need something that is going to attract the attention of passersby, something that your members can rally around during their protest, something that is so hideous that the company whose building it sits in front of will do just about anything to get you to move it.
You need access to a rat.
Rats have, of course, long been a staple of the New York union scene.
Hat tip: Joel King.