October 23, 2010
Just Another Battle Between Employers and Employees . . . .
It's no secret that the economy--especially jobs--is the biggest factor in this year election. As further proof, just look at third-party group spending this year. As this Steven Greenhouse article shows, the two 800-pound gorillas are the Chamber of Commerce and organized labor. Just look at some of their spending:
The giant union of government workers, the American Federation of State, County and Municipal Employees is promising to spend a record $66 million this year on get-out-the-vote efforts, voter education and political advertisements. That includes $16 million that the union recently took out of an emergency fund, and it comes on top of $21 million it spent last year, mainly on state and local races. The union says it has spent $17 million on broadcast advertisements so far this year.
Reflecting a growing dispute between unions and the Chamber of Commerce, the public employees’ union is arguing that its campaign spending this year is less than the Chamber’s $75 million, even though the union has spent $87 million over the two-year election cycle.
The A.F.L.-C.I.O. plans to spend about $50 million in this year’s campaign, while the Service Employees International Union, one of the most politically active unions, plans to spend $44 million, including $14 million already spent on advertisements.
Needless to say, the Chamber will be happier on Nov. 2, but there is still a lot at stake for unions trying to minimize the damage. Another reminder of what we all try to tell everyone: employment matters matter!
October 22, 2010
Garcetti vs. Public School Teachers: Garcetti Wins and We All Lose
Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.
The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies. In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. (6th Cir., 10/21/10), a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Reoublican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:
[T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties.
Without doing any legal analysis, just wrap your mind around that statement for a second.
The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?
And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).
But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me. First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern. That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.
Second, and no less troubling, is the fact that public employees will no doubt feel muzzled by this legal rule (and rightfully so). They speak out, they could lose their jobs. That means that the people who are best positioned, and best experienced, to tell us what is going on in our school districts, have now been gagged. We all lose.
Look, this decision was inevitable since Garcetti was decided in razor-thin 5-4 decision by a conservative majority in 2006. As I and many other have predicted, the inevitable result has been a ceaseless cutting back on the constitutional rights of public employees. Helen Norton and others have explained how this has occued through the Roberts' Courts grossly inflated use of the government speech doctrine and it is no surprise that Judge Sutton relied on it here.
So you might say, "Don't worry, Paul, this will surely be legally challenged." Let me point out that the teacher was acting pro se in this case and really never had a chance. I guess we will see if someone steps up and takes her case to the Supreme Court. I almost hope they don't. Given the current make-up of the Supreme Court, such a challenge would just further ensconce this horrible, and not very well supported, piece of constitututional law.
We need to remember that public employment is not a privilege whereby the goverment can force individuals to forego the exercise of their constitutional rights in order to secure government employment. This is true with any government employment, but especially true with a public school teacher who we want to be able to show through example how to engage in criticial thinking and constantly push the contours of knowledge. We want our school teachers to engage in robust debate with their students and expand the spectrum of knowledge.
Never before have I been so concerned that Justice Jackson's admonision in Barnette is no longer being heeded:
And as Justice Blackmun wrote eloquently in his concurring decision in Board of Educ. v. Pico, 457 U.S. 853 (1982) (and to which I firmly subscribe):
Keyishian v. Board of Regents, 385 U.S. 589 (1967) -- a case that involved the State's attempt to remove "subversives" from academic positions at its universities, but that addressed itself more broadly to public education in general -- held that "[t]he classroom is peculiarly the ‘marketplace of ideas"'; the First Amendment therefore "does not tolerate laws that cast a pall of orthodoxy over the classroom." Id. at 603. And Barnette is most clearly applicable here: its holding was based squarely on the view that
[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.
319 U.S. at 637. The Court therefore made it clear that imposition of "ideological discipline" was not a proper undertaking for school authorities. Ibid.
In combination with more generally applicable First Amendment rules, most particularly the central proscription of content-based regulations of speech, see Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the cases outlined above yield a general principle: the State may not suppress exposure to ideas -- for the sole purpose of suppressing exposure to those ideas -- absent sufficiently compelling reasons.
That principle has not been followed today and, as a result, we are all made poorer by the Sixth Circuit's knee-jerk extension of the Garcetti holding to the public school context; it does nothing less than cast a pall of orthodoxy over the classroom and makes an obscene joke of academic freedom in the primary and secondary classroom environment.
Secunda on the Future of Captive Audience Doctrine
Congratulations to Paul, who has posted on SSRN his piece forthcoming in the Indiana Law Journal: The Future of NLRB Doctrine on Captive Audience Speeches. From the abstract,
Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.
If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts or Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards.
A great addition to Paul's impressive efforts to reform the law in this area.
October 20, 2010
European MPs Vote to Extend Maternity Leave
Members of the European Parliament have approved, by a narrow margin, a proposal that would extend maternity leave to 20 weeks on full pay and make that mandatory in the EU. Minimum maternity leave in the EU is currently 14 weeks. For more, see this article in BBC News Europe.
The illustration at left obviously applies to the American -- not the European -- policy on maternity leave.
R.I.P. Paul Steven Miller, Disability Law Expert and Former EEOC Commissioner
Update: you can leave memories and condolences for Paul's family here (sign up is free and easy). And a new picture, the way I like to remember Paul.
This one really hurts, I'll make no bones about it.
Today, I must unfortunately report the passing of my dear friend and colleague, Paul Steven Miller of the University of Washington School of Law. Many of you no doubt know Paul from his time as an EEOC Commissioner during the Clinton Years and his work with the Obama White House on transition and disability issues more recently.
But that really doesn't tell you who Paul was. He was a man born with limitations that might have stymied some, but he never let them get in his way. He was a forceful advocate and a thoughtful thinker for people with disabilities and for people discriminated against in the workplace in general. In the end when he was slowed by loss of an arm and sickness, he remained hopeful and thoughtful about what his future might hold.
Please leave tributes to Paul in the comments. Thanks to Ani Satz and Mark Weber for supplying everyone with this funeral information and memorial news.
The service will be at Temple De Hirsch Sinai, 1511 E. Pike Street, Seattle, at 5:00 p.m. A memorial service will also be held in DC at a later date. The family will be sitting shiva Wednesday evening and Thursday and Friday until sundown at the Mechem-Miller home, 8451 S.E. 36th Street in Mercer Island. Donations can be made to a college fund for Paul's daughters Naomi and Delia Mechem-Miller. Donations can be given to Jenni Mechem with "girls' college savings" in the check memo line.
Rest in peace, my dear friend.
Anita Hill Asked to Apologize by Justice Thomas’s Wife - NYTimes.com
In a voice mail message left at 7:31 a.m. on Oct. 9, a Saturday, Virginia Thomas asked her husband’s former aide-turned-adversary to make amends. Ms. Hill played the recording, from her voice mail at Brandeis University, for The New York Times.
This story speaks for itself.
A Fisk 3-Fer
Catherine Fisk (UC-Irvine) has just posted on SSRN a trio of articles:
- The Jurisdiction of the Writers Guild to Determine Authorship of Movies and Television Programs.
- The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-Member NLRB and the Questions the Supreme Court Should Have, But Didn’t, Address in New Process Steel LLC v. NLRB.
- The Modern Author at Work on Madison Avenue.
October 19, 2010
Unfortunately, we have anouther death to report: Betty Murphy, the first female chair of the NLRB. She was nominated by President Ford, serving as chair from 1975-1977 and as a member for two more years According to the NLRB's press release:
Ms. Murphy was a partner in the law firm of Baker & Hostetler from 1980 to her death,
and had tried cases in 29 states, with appearances before nine U.S. Courts of Appeals and the Supreme Court. She was the first woman to hold the position of Chairman at the
NLRB. Prior to being appointed to that role by President Gerald Ford, she served as
administrator of the Department of Labor’s Wage and Hour Division. She had five
additional Presidential appointments to special commissions, including the Commission
on the Bicentennial of the U.S. Constitution and the International Centre for Settlement
of Investment Disputes.
Earlier, she had worked as a reporter for UPI news service. Hoping to eventually cover
the Supreme Court, she enrolled in a few classes at Washington College of Law, at
American University, and became fascinated by the study and practice of law. After
graduating, she decided to pursue a legal career rather than return to journalism.
There's actually interesting interview with her in the DC Bar's "Legends of the Law" series from 1996 that's worth checking out.
R.I.P. Alan Lerner
I am sorry to have to bring you the news of the passing of Professor Alan Lerner of the University of Pennsylvania School of Law. He was a distinguished member of the labor and employment law academy.
From the Penn Press Release:
Alan Lerner, practice professor of law at the University of Pennsylvania Law School whose teaching and practice impacted the lives of countless students and clients, died Thursday of complications arising from cancer. He was 68.“Alan was an exceptional lawyer, an inspiring teacher, and a devoted member of the Law School community,” said Penn Law Dean Michael A. Fitts. “He was also one of the most humane people one could meet, with a strong commitment to justice and to using the law to help the most vulnerable members of society.”Professor Lerner was a recognized expert in labor and employment law, family law, and legal ethics, and brought that expertise to bear as he also became a leading expert in clinical teaching. He joined Penn Law’s faculty in 1993, after 25 years of successful private practice at the law firm of Cohen, Shapiro, Polisher, Shiekman and Cohen. He said at the time that his decision to become a clinical professor was spurred by a desire to pursue his passion for teaching and for deeper academic inquiry and creativity than the pressures of private practice allowed. Years later, Professor Lerner wrote to Dean Fitts that his experience proved he made the right decision; he found teaching and supervising students, and watching them grow as individuals and lawyers, deeply gratifying.
October 18, 2010
The Happy Lawyer
Congratulations to Nancy Levit and Doug Linder (both UMKC) on the publication of their book The Happy Lawyer: Making a Good Life in the Law (Oxford University Press; also available (for less) at Amazon). Here's an excerpt from the publisher's notes:
The Happy Lawyer examines the causes of dissatisfaction among lawyers, and then charts possible paths to happier and more fulfilling careers in law. Eschewing a one-size-fits-all approach, it shows how maximizing our chances for achieving happiness depends on understanding our own personality types, values, strengths, and interests.
A timely book at a not-so-great time to be a lawyer.
The NUHW-SEIU Battle Continues
Recenlty, the SEIU won approximately 60% of the employees' vote to continue representing health care workers in California at Kaiser-Permanente; the splinter National Union of Healthcare Workers union won 37.5% of the vote. This is a big deal, as it involved the representation of approximately 43,000 employees. As you'd expect given the highly conentious relationship between the two unions, the NUHW isn't rolling over yet. The union has now filed an election objection with the NLRB. Among the assertions are collusion between Kaiser and SEIU, including the employer assisting the SEIU and withholding wages from employees who had joined the NUHW.
This isn't going away for a while, so stay tuned.
RFP Warns Institute
Ariana Levinson (Louisville) has been running the Warns Institute for the last couple of years now. It's one of the better labor/employment conferences in the country for attracting both academics and practitioners. Historically, the Louisville (née Brandeis) Law Review would devote an issue (in whole or in part) to the Warns Institute, but that hasn't been the case in recent years. Kudos to Ariana for persuading the Law Review to reinstate the practice!
Ariana has sent us this request for proposals:
Twenty-Eighth Annual Carl A. Warns Jr. Labor & Employment Law Institute
Call for Proposals and Manuscripts
The Twenty-Eighth Annual Carl A. Warns Jr. Labor & Employment Law Institute invites you to submit a proposal to speak on a labor law or employment law topic. We are accepting proposals on important or cutting-edge developments on issues that are relevant to practitioners.
The Institute will take place on June 23 & 24, 2011, at the Downtown Marriott in Louisville, Kentucky. Attendees will be a blend of practitioners, public servants, and professors. If you are unfamiliar with Louisville, it's a great place to spend a few days.
Proposals must be submitted by midnight, Friday, November 19. Based on your proposal, you may receive an invitation to speak at the Institute. Speakers at the Institute will also have the opportunity to submit a manuscript that may be chosen for publication in the University of Louisville Law Review Warns Institute Colloquium Issue. Manuscripts will be due March 1, 2011. Selection of manuscripts for publication will occur in April. All speakers must ultimately have some type of written material, such as an outline, article, or work in progress to include with the conference materials.
Public Sector Employment, 2d
Congratulations to Marty Malin (Chicago-Kent), Joe Slater (Toledo), and Ann Hodges (Richmond) on the publication of the second edition of their casebook Public Sector Employment (available in December)! Here's the publisher's description:
This law school casebook includes materials dealing with constitutional rights of public employees, civil service, tenure and other laws specific to public employees, as well as public employee collective bargaining statutes and/or significant unionization among public employees. It emphasizes how the law governing the public sector workplace differs from the private sector. The book facilitates classroom examination of different policies, issues, and concerns that arise when government is the employer. Laws from a variety of states, as well as the federal government, enables the instructor to compare different approaches to matters such as bargaining unit definitions, scope of bargaining, impasse resolution, and grievance arbitration.
October 17, 2010
Statistical Evidence in Age Cases
Thomas Tinkham (visiting, William Mitchell) has just posted on SSRN his article The Uses and Misuses of Statistical Proof in Age Discrimination Claims. Here's the abstract:
When it comes to statistics, age discrimination is different than other forms of discrimination. In most discrimination cases we can take the protected population and make appropriate adjustments for necessary characteristics like education and compare the results to the other employee groups.
With age discrimination this method does not work. It doesn’t work because the normal patterns of aging and promotion or wage increase distort the statistical result. Employees typically are promoted more quickly and receive the highest percentage wage increases in early years. However, they generally retain those benefits for life. Employees reach a high point in their careers and then age in those positions while younger employees who have not yet reached their highest level are promoted. These phenomena require special care in evaluating statistics in age discrimination cases.