November 5, 2010
October's Employment Figures
The Department of Labor has released its October employment data. As has often been the case lately, it's a mixed bag. On the good side, there were 151,000 new jobs last month, more than the expected 60,000 new jobs. This represents an addition of 159,000 private sector jobs and a cut of 8,000 government jobs (primarily the final throes of the Census effect). Pay and the number of hours worked inched up, which is a good sign. However, the unemployment rate remains unchanged at 9.6%--largely because more people are returning to the labor force to look for jobs. In other words, were still in the midst of a long slog that is going in the right direction, but taking its own sweet time.
November 4, 2010
Georgia's New Noncompete Amendment
On Tuesday, Georgia voters approved, by a whopping 68%-32% margin, a constitutional amendment stating that "the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?" What this amendment does is to approve a measure to expand enforcement of covenants not to compete.
My understanding of what's going on here--aside from having voters act on an amazingly unclear amendment--is to make Georgia a "blueline" state. That is, it would allow judges to modify noncompete agreement that are too broad rather than, as was the practice, simply void those agreements. Got wonder what the vote would've been had it been explained better (and many voters actually understood or cared).
Hat Tip: Jason Walta
November 3, 2010
State Secret Ballot Measures
Justin Keith, at Greenberg Traurig’s Labor & Employment Blog, has posted on successful ballot measures in Arizona, South Carolina, South Dakota, and Utahthat would require secret ballot elections for union recognition. We've posted on the attempts before (see here and here), but yestersay's election has ramped things up.
I'm still of the view that these measures are obvious candidates for premption, but it looks like we'll have a more official word soon enough. Stay tuned.
Pedersen on Implicit Bias
Natalie Pedersen (Drexel) has just posted on SSRN her article (corthcoming Cincinnati L. Rev.) A Legal Framework for Uncovering Implicit Bias. Here's the abstract:
Actors’ implicit biases impact the law in many areas, ranging from employment discrimination to criminal law. Legal scholars are rightly concerned with the effects of implicit bias, and have suggested myriad ways of counteracting it. However, many employment discrimination scholars are pessimistic about the current law’s potential to curtail the effect of implicit bias. There has been very little written about how the actual framework of an employment discrimination suit can mitigate such bias. This paper fills that gap by suggesting such a framework and exploring the importance of the framework at the summary judgment stage of litigation. This paper will examine the way in which the framework used by courts in individual disparate treatment employment discrimination cases can work indirectly to force employers to reflect upon their motives for a particular decision. I advocate for the use of the motivating factor framework at the summary judgment phase; using this analysis, as opposed to the single factor analysis encapsulated in McDonnell Douglas, will ultimately change employers’ decision-making behavior. Through a review of social psychology literature on decision-making and implicit bias, as well as a comparative case analysis of the differing frameworks used to analyze individual disparate treatment cases, I demonstrate the power that the motivating factor framework holds to indirectly mitigate the effects of implicit bias in workplace decisions.
Maslanka on the Cat's Paw
Michael Maslanka over at Work Matters has a nice summary of the arguments in Staub v. Proctor Hospital. He predicts that the Court will choose a middle ground between the extreme positions proffered by the Seventh Circuit and the plaintiff. His prediction: the Court will create a "presumption that the bad actor 's act influenced the decision, then make the employer rebut the presumption."
November 2, 2010
Vanderbilt Law Review En Banc Roundtable on Dukes v. Wal-Mart
Vanderbilt Law Review En Banc, the journal's on-line companion, has just published a roundtable on Dukes v. Wal-Mart. The roundtable focuses on the class action element of the case, which is eye-popping given the approximately 2 million members of the class. According to the journal's announcement:
Our current Roundtable is on Dukes v. Wal-Mart Stores, Inc. and features participation from several scholars. Professor Elizabeth Burch’s introductory piece lays the foundation for the debate. Professors Robert Bone, Alexandra Lahav, Greg Mitchell, and Richard Nagareda are providing their “first takes” on the case. The Roundtable is dedicated to the memory of Professor Nagareda, who passed away on October 8, 2010. We hope you find the Roundtable informative and engaging.
The list of contributions are:
Elizabeth Chamblee Burch, Introduction: Dukes v. Wal-Mart Stores, Inc.
Robert G. Bone, Sorting Through the Certification Muddle
Alexandra D. Lahav, The Curse of Bigness and the Optimal Size of Class Actions
Gregory Mitchell, Good Causes and Bad Science
Richard A. Nagareda, Common Answers for Class Certification
Check out what looks to be a great set of pieces on this important case.
Jumping the Gun on a "Resignation"
Where a contract for a term of years is involved, it's pretty clear that, just as the employer cannot fire the individual (except for cause), the employee cannot merely resign without potential liability (again, except for material breach by the employer).
But what happens when the employee raises a potential parting of the ways? This can be trickier than it looks.
The issue arose recently in DiFolco v. MSNBC Cable where an employee's e-mail to her bosses suggesting they "discuss my exit from the show" triggered a series of events that did, in fact, result in her departure. MSNBC treated the message as a resignation and a breach of contract (despite plaintiff's insistence that she had not resigned), and the plaintiff sued for breach by MSNBC and also defamation (based on the channel's claims that she had breached).
Although the district court found for MSNBC on a 12(b)(6) motion (the court viewed itself as able to go beyond the complaint and assess plaintiff's e-mail since it was "integral to the complaint"), the Second Circuit reversed.
Plaintiff's e-mail was not an anticipatory repudiation since it was not a a "positive and unequivocal" announcement of an intention not to perform. While she indicated a desire not to work with her current boss, this did not necessarily mean that she wanted to leave the channel. Further, while the court didn't focus on this, a proposed mutual rescission of an extant contract isn't logically the same as a threat to breach.
Because the plaintiff had adequately alleged a breach of contract, and also alleged that MSNBC defamed her by publishing statements that she had resigned "in the middle of her contract," the Second Circuit also reversed the lower court's dismissal of the defamation claim. If a jury were to find she hadn't resigned, the statement that she had would have been untrue and defamatory.
DiFolco is consistent with a line of cases that hold that acting on the basis of the other party's breach (or anticipatory repudiation) can be dangerous. If the employer is right, there's no probllem but if the supposed breach (or repudiation is later found not to have been material (or somehow equivocal), it will be the employer who is in breach.
There are lessons here for both employees and employers. For the former, "you can't fire me, I quit" has its downsides. For the latter, an employee's broaching a proposed departure is not the same as quitting.
DiFolco seems like a situation where a graceful exit would have been in the interests of both parties. But, after all, this was television -- maybe drama was the overriding driver on both sides.
November 1, 2010
The Post-Election Scenario for Labor Law
Steven Greenhouse at the New York Times provides a glimpse of Republican plans for labor matters if, as expected, they make signficant gains after the midterm elections. I find discussion of the expected legislative bills--including a prohibition against voluntary recognition and a requirement that all employees opt-in to political spending--to be a bit silly, as even if the Republican control both houses, such bills are a dead letter in the near-term (a little thing called "presidential veto" still exists). Far more interesting is this insight by former GC Ron Meisburg, who predicted:
that if a Republican-controlled House cripples labor-backed legislative efforts to make it easier for workers to unionize, the Democratic-controlled labor board might take administrative steps. Mr. Meisburg, a lawyer at Proskauer Rose, noted that one Democratic labor-board member recently proposed making a change in the timing of workplace elections after employees file a petition to hold a unionization vote, reducing the delay to just five or 10 days. Unions want an accelerated schedule because they say employers have too much time to ply workers with antiunion propaganda, but employers complain that such quick elections would deny employers an adequate opportunity to campaign against unionizing.
I think that's exactly right, and it will be interesting to see if the Board moves on quick elections and other related matters. Either way, these will be interesting times for sure.
Online Assembly Lines
The New York Times article When the Assembly Line Moves Online describes the workplace trend of farming out dull, repetitive "microtasks" such as transcribing handwritten letters and numbers. The article prominently features Miriam Cherry (McGeorge, visiting at St. Louis), and provides a link to her Alabama L. Rev. article on applying the FLSA to online work. Congrats, Myriam!
Recently Published Scholarship
- Sarah Abigail Wolkinson, A Critical Historical and Legal Reappraisal of Bhatia v. Chevron USA, Inc.: Judicial Emasculation of the Duty of Accommodation, 12 J. Penn. J. Bus. L. 1185 (2010).
- Lillian Kim, Mandatory Retirement in the Private Sector: The Reach (or Inapplicability) of the Age Discrimination in Employment Act Domestically and Abroad, 12 J. Penn. J. Bus. L. 1209 (2010).
Follow-Up Re Clyde Summers
I am re-posting here, with permission, Alvin Goldman's tribute to Clyde:
On Saturday Evelyn Summers phoned to ask us to pass along to friends the information that Clyde died peacefully in his sleep the previous evening. Clyde had been living in nursing homes for the past five years after suffering a stroke that left him partially paralyzed. Well over a year ago he told his family he wanted his remaining time to be handled asa hospice situation with no medications except to ease pain. Marty Malin and I visited with him last June. Evelyn had forewarned me that he had days when he was sharp and days when he seemed disconnected. Luckily, he was very sharp that afternoon and looked quite healthy and strong despite his continued disabilities. Early in the visit with a gentle smile he said something like "I suppose you fellows are here to say goodbye."
As all of you know, for over six decades Clyde was a highly productive and leading scholar in the labor and employment law field, as well as an outstanding teacher. What some may not know is that he taught successively at the law schools at Toledo, Buffalo, Yale and Pennsylvania. In addition to his often quoted articles and notable casebooks in the areas of employee rights, labor, and employment law, he was a leading comparative law scholar and for a number of years co-edited the comparative labor law journal at Penn that Matt Finkin now produces at Illinois. In recognition of his work he received honorary doctor of law degrees from the University of Stockholm, Sweden and from Catholic University, Leuven, Belgium. The National Employment Lawyers Association named him Advocate of the Year in 1991, and he received study fellowships from the Fullbright Foundation, the German Marshall Fund, and the National Endowment of Humanities. In addition, during the course of his career he was a Ford Faculty Fellow, Guggenheim Fellow, and Columbia University Fellow.
[Labor Law scholars] are familiar with Clyde's Clyde outstanding speaking skill. He delivered named lectures at the law schools at Northwestern, Louisville, Chicago-Kent, Southern Methodist, Illinois, and Buffalo, as well as the ABA’s Labor Law Section's annual Supreme Court summary. Over his long career he gave talks or conducted seminars or courses in South Africa, Germany, Sweden, Austria, Italy, Mexico, Korea, Poland, and Japan, often being invited back for repeat performances.
Clyde served as President of the International Society for Labor and Social Security Law and of its U.S. Branch. He also held a variety of appointments to public councils and commissions in Connecticut and New York and for NAFTA and several U.S. government Departments and the National Science Foundation.
Those of us privileged to work with Clyde knew him as a patient listener who encouraged younger colleagues and was always ready to listen to a competing thesis. Part of Clyde's youth was spent farming and he never lost his love for skilled and unskilled physical tasks. More than once when phoning their summer home in Vermont, Evelyn explained that Clyde would have to get back to me because he was making repairs on the barn roof or painting the opposite side of the house. And there are many now solid, mortarless stone walls in Vermont and southern Pennsylvania that Clyde rebuilt out of love for the challenge of fitting the right piece where it was needed.
Marty Malin's Employee Rights and Employment Law Journal recently published a special edition, Volume 14, No. 1, in honor of Clyde with several (including contributions by several Group members) examining his contributions to labor and employment scholarship. Evelyn reports that he listened attentively and with great pleasure when she recently read the dedications and appreciations to him (the stroke impaired his ability to read).
Clyde’s widow, Evelyn, can be reached at:
608 W Phil Ellena St,
Philadelphia, PA 19119-3509
October 31, 2010
More sad news
Marty Malin and Lea Vandervelde pass on the sad news that Clyde Summers passed away late last week. Clyde contributed so much to our field, and although I did not know him personally, I know that he was a great mentor and friend to many of you. He will be greatly missed. I was lucky to work on the Employee Rights & Employment Policy Journal issue commemorating his work and learned a great deal from that experience alone. When I have more details, I will pass them along.