November 12, 2010
The New York Times just published its obituary for Clyde Summers, written by Steven Greenhouse. Not surprisingly, it's quite flattering and contains nice quotes from Julius Getman, Michael Goldberg, and Marty Malin (and a finale quote from Summers himself).
Labor and Employment under the Obama Administration
Ken Dau-Schmidt has put together an amazing conference: Labor and Employment Law under the Obama Administration: A Time for Hope and Change? The conference will be today and tomorrow at Indiana University -- Bloomington.
November 11, 2010
Call for Proposals for Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law
Previous Colloquiums have taken place in Milwaukee, Denver/Boulder, San Diego, Newark, NJ, and St. Louis, Mo.
The Colloquium offers a chance for labor and employment law scholars to workshop their papers in front of a supportive group of their colleagues from around the country (and sometimes from around the world). If you are interested in pitching your school for the Colloquium, please email a written proposal to me (email@example.com) by December 15th.
The proposal should include information about the facilities to be used, the days proposed, how panels will be set up, food to be offered, accessibility to airport, and other costs to be borne. If people are interested in seeing proposals from previous years, the Committee will be happy to supply you with some past examples. Please note that past Colloquium have not charged a registration fee and participants are only responsible for their travel and lodging costs. Host schools have generously provided meals in the past during the Colloquium. Please also feel free to email me with any additional questions you might have.
Animations Illustrate Protected, Concerted Activity
David Foley (NLRB), using Xtranormal, has created a couple of animations to illustrate protected concerted activity. Check them out at his blog here. I can think of all kinds of ways animations like these could be used in the classroom. Have you used animations in the classroom? If so, how, and how did they work?
November 10, 2010
Memorial Services for Paul Miller
We wanted to let you know about memorial services that are planned for former EEOC Commissioner Paul Steven Miller.
There will be a service in Los Angeles, Sunday, November 14, 2010 at 1:30 PM. This service will be held at the Westside campus of Wilshire Boulevard Temple, 11661 West Olympic Boulevard (at the corner of Barrington) in the Marcia Israel Chapel.
A Washington, DC service is scheduled for Sunday, November 21, 2010 at 1:30 PM. This service will be held at Adas Israel Congregation, 2859 Quebec Street, NW (at the corner of Porter/Quebec and Connecticut Avenue, NW, Cleveland Park metro stop).
Sternlight on the SCOTUS Class-Action Arbitration Case
Yesterday, the Supreme Court heard oral argument in AT&T Mobility v. Concepcion, No. 09-893. Jean Sternlight (UNLV) has posted her insightful thoughts on the oral argument over at ADR Prof Blog; I repost them here with her permission.
AT&T Mobility v. Concepcion ... has the possibility of being momentous in the worlds of "mandatory" arbitration and class action. The district court and 9th Circuit held that AT&T Mobilitity's arbitration clause was unconscionable because it prohibited consumers' use of class action in litigation or arbitration. AT&T argued that the unconscionability finding is preempted by the Federal Arbitration Act. If AT&T were to win, the decision would potentially allow companies to use arbitration to insulate themselves from the threat of consumer class actions, and thus evade a great deal of regulation . Such a decision might also create a great deal of confusion and inefficiency in the lower courts, as all lower court findings that arbitration clauses were unconscionable or otherwise impermissible as a matter of general contract law would be opened up to attack under a preemption argument.
I make no claims to being a sage, and certainly would not try to predict how the Supreme Court will come out in AT&T Mobility v. Concepcion. However, having just read through the transcript of today's argument I do have a few observations.
I was very impressed by the quality of the argument. Eight Justices (Thomas was silent) asked multiple questions and seemed to have good familiarity with the issues and good preparation. The advocates were very good as well.
The argument focused substantially on the extent to which it is appropriate for the Supreme Court, as Justice Scalia put it, to "sit in judgment" on a ruling of state law by lower courts. Justice Sotomayor similarly asked whether the Court must review state law, and Justice Kagan wondered whether or when it is appropriate for the Supreme Court to say a state has incorrectly applied its unconscionability analysis. Respondents are likely quite pleased with Justice Scalia's and the others' focus on this "states' rights" concern, and hopeful that Justice Thomas may also share this worry.
On the flip side, Petitioner argued that it would clearly be impermissible for a state to require that all dispute resolution procedures use formal rules of evidence, juries, judges, or full discovery rules. Petitioner further argued that prohibiting the elimination of class actions is akin to mandating the use of formal rules of evidence etc. In response, Respondent agreed that mandating the use of formal rules of evidence etc. would be impermissible, but disagreed that prohibiting elimination of class actions is similar. Instead, Respondent urged that while it would clearly be subterfuge for a state to insist that formal rules of evidence or juries are necessary to avoid unconscionable results, it can be appropriate to hold a class action prohibition unconscionable.
In short, the legal heart of the argument was the question of what state laws or interpretations of common law are preempted by the FAA. There generally seemed to be consensus (although precise phrasing might differ) that state laws or interpretations of common law are preempted if they either (1) discriminate between arbitration and litigation to the disadvantage of arbitration or (2) effectively eviscerate arbitration. However, the Justices and advocates had differences regarding how to apply these principles.
With respect to the discrimination principle, the Petitioner argued that the lower courts had applied unconscionability law differently to arbitration (ruling the class action prohibition unconscionable) than they had done or would have done in a litigation context. Their advocate urged that the courts improperly (1) expressed concern for the rights of third parties and not just the Concepciones; (2) looked at claimants' concerns at the time of the dispute and not ex ante; and (3) used a "deterrence" rather than a "shocks the conscience" unconscionability analysis. Justices Alito and Roberts expressed support particularly for the third party argument. In response Respondent argued that the Discover Bank analysis had originally been used in a litigation case (Justice Kagan made the same point), and Justice Ginsburg noted that Petitioner had presented no evidence that California used a different unconscionability test in litigation than it did in arbitration. With respect to ex ante and ex post analysis the Concepciones' attorney argued that the class action prohibition was unconscionability using an ex ante analysis. He explained that ex ante they would not have known if they would have been among the small minority of consumers who would realize they had been defrauded and able to secure counsel to bring such a claim, or whether instead they would need the protection of a class action to prevent unfair treatment. Thus, Respondent urged that there is no clear distinction between the Concepciones and third parties using an ex ante analysis. In support of the idea that the lower courts did not discriminate Justice Breyer pointed out that since classwide arbitration can exist, a doctrine limiting class action waivers is not targeted against arbitration.
With regard to the evisceration idea, Petitioner urged that preventing companies from requiring waiver of class actions would lead them not to use arbitration at all. Justice Alito seemed particularly sympathetic to this point, stating that the Court would need to make a "value judgment" as to whether class action fits with arbitration. Justice Breyer and Kennedy also seemed concerned that Respondent's position would reduce the amount of arbitration. However, Justice Ginsburg suggested that class actions could be preserved in court, and Respondent's attorney pointed out that while companies might also prefer arbitration that eliminated punitive damages or shortened class actions the FAA does not allow them to impose unconscionable provisions simply in order to maximize the amount of arbitration. Given a chance to distinguish Stolt Nielsen, by Justice Ginsburg, Respondent explained that the company does not under his analysis need to opt for classwide arbitration. Rather, in situations in which access to classwide relief is essential a company could allow such claims to be brought in court, rather than in arbitration.
In sum, I think Respondents have to be pleased with how the argument went. A significant number of Justices seemed to recognize that some arbitration provisions are unconscionable, and that second-guessing lower courts' unconscionability rulings can raise some difficult federalism and administrative issues. Petitioner's attorney did not offer a test that would allow courts to clearly distinguish between permissible and impermissible uses of the unconscionability doctrine, and that seemed troubling for quite a few Justices. Also, the argument did not focus on the specific terms of the AT&T Mobility unusual arbitration clause, which Petitioner had urged was very favorable to the Concepciones. (The clause provides a bonus to persons who individually challenge an aspect of the AT&T Mobility clause in arbitration and are offered a settlement that is worse than the result they receive in arbitration. AT&T urged that this ensures fair access. Respondent claimed the provision did not help most consumers - because they would not even be aware their rights had been violated and might not be able to obtain an attorney. But, the specifics of the clause were not discussed during the argument).
Jean R. Sternlight
Saltman Professor, UNLV Boyd School of Law &
Director Saltman Center for Conflict Resolution
November 9, 2010
New Iowa Law Gives Veterans Veterans Day Off
Anne Janks of Can My Boss Do That?, a website run by a group of nonprofits to provide information to workers about their rights sends along this interesting piece of news. Iowa passed a law this past Spring requiring that employers give veterans Veterans Day off. See here for the text of the statute. All employers are covered, but there are some exceptions for public safety or significant disruption to the employer's business. And the leave can be unpaid. Still, it seems a pretty reasonable requirement.
EEOC Publishes Final GINA Rule
The Equal Employment Opportunity Commission published its final rule today implementing the Genetic Information Nondiscrimination Act. You can find it here.
Hat tip: Pat Schaeffer
Man Doesn't Bite Dog
This summer, the Third Department in New York rejected an employee’s attempt to use the employer’s handbook disclaimers against it. As is typical, the employee handbook in question stated that it was “not intended to create a contract, nor are [the policies set forth] to be construed to constitute contractual obligations of any kind….” One of the policies in the handbook required employees to repay training costs if they left within a year.
The employee argued that the disclaimer necessarily negated any obligation that might otherwise be imposed on him by the policy: Just as the employer wasn’t bound by its handbook, neither was the employee.
In Currier, McCabe & Associates v. Maher, 906 N.Y.S.2d 129 (3d Dept. 2010), the court disagreed. Or, rather, it looked past the handbook to the “Employment Agreement” the employee had signed, which acknowledged he had read the handbook and agreed to its terms and conditions. It was this Agreement that bound him with its incorporation by reference of the employer’s policies.
The court gave short shrift to the argument that the incorporation included the disclaimer of contract status. While the court found, for not so obvious reasons, that this was not true as a matter of interpreting the language of the Agreement, it bolstered that conclusion with the argument that the plaintiff’s construction would “lead to the absurd and contradictory result that inclusion of a term in the handbook defeats the employment agreement’s clear purpose to include the handbook’s terms.”
I guess it's hard to argue with the result, however much I enjoy seeing attempts to turn the tables on employer efforts to avoid any contractual liability to their employees. But the case does suggest that employees and their attorneys would be well advised to carefully examine "acknowledgments" and other documents that might negate liability that would otherwise attach.
November 8, 2010
Facebook and Labor Law
Facebook has given us a twofer today, with two recent labor law cases dealing with the Internet social media site. In the first, the NLRB has filed a complaint against an employer alleging that it illegally fired an employee for criticizing her supervisor on Facebook. The Board also challenged the employer's policies that prohibited employees from depicting the employer “in any way” on social media sites and prohibited disparaging comments about co-workers or superiors. Although anything with Facebook is certainly going to catch interest, I'm not sure this is a "ground-breaking case." Acting GC Solomon puts it nicely in his description (from the NY Times):
"This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
What might be particularly relevant about this case is that it will bring the NLRA to the attention of a lot of people who were unaware of its existence in non-union settings (although the employee was represented by the Teamsters here--there was apparently a Weingarten-like issue with regard to a response to a customer complaint--the press on this case is appropriately noting its relevance to all private-sector employers). As I've written about recently, I think one of the biggest opportunities for the NLRB to expand its relevance is to make its applicability to nonunion workforces more known.
The second case is from British Columbia. In Lougheed Imports, the BC Labour Board dismissed a ULP complaint that was based on an employer terminating union activists for their posts on Facebook. The Board considered the comments to be highly offensive, insulting, and disrespectful. Thus, despite some evidence of union animus, the Board found that the investigation and termination of the employees were because of insubordination and disloyalty, rather than union activity. Again, this is a fairly typical case (the Board compared it to inappropriate comments on a shop floor). But if Facebook is what it takes to give labor (or labour) law more attention, then so be it.
Hat TIp: Bill Herbert
Remembering Clyde Summers
As I am sure most of you have heard by now, Clyde Summers passed away on October 30. What you may not know is that Clyde was part of the genesis for the Peggy Browning Fund. When Margaret Browning passed away, Clyde suggested the idea that led to establishment of the PBF. All of us, I am sure, have had students who have benefited from PBF’s fellowships for law students working with unions, public interest organizations and the NLRB, from attending the PBF’s annual national law student workers’ rights conferences and from accessing the AFL-CIO LCC Hiring Hall on the PBF website. Clyde’s family has designated PBF as a recipient of contributions made in Clyde’s memory.
At the request of PBF President Joe Lurie, I am providing this information to you. Here is a link to the PBF website’s information on Clyde and donations, and a link to the obituary that appeared in the Philadelphia Inquirer.
Thanks Marty, for passing on the information. What a good idea for a tribute.
November 7, 2010
AALS Newsletter Help
I’m putting together the annual newsletter for the AALS Labor & Employment Section want to enlist readers’ help. First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here, please let me know (firstname.lastname@example.org).
Second, I wanted to solicit anyone who would be interested in writing a brief description of a recent “big” labor and employment case (Supreme Court decisions are obvious choices, but not the only ones). The description should be pretty short (5-10 paragraphs), so it shouldn’t take too long—especially if it’s a case you’ve already been thinking a lot about. Therefore, if you’re looking for an easy way to get your name out there or just need an quick outlet for all of your ruminations about a case, now is the time. Just let me know what case you’re interested in writing on.